Weldon v. State
| Decision Date | 21 September 1951 |
| Docket Number | No. 33726,No. 2,33726,2 |
| Parties | WELDON v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Evidence constituting a part of the res gestae of the offense is admissible even though it may incidentally tend to prove the defendant's guilt of some other offense for which he is not on trial.
2. The opposite party in a trial has a right to a through and sifting cross examination. Where, as here, a witness for a defendant on trial for assault with intent to murder states on direct examination that the defendant has never been in trouble of this kind before, it is the right of the state to prove on cross examination knowledge of the witness gained from the defendant's statements to him concerning a previous altercation in which the defendant suffered a knife wound.
3. To establish his plea of self defense, the defendant must show that the circumstances, were such as to excite the fears of a reasonable man that his life was in danger; a mere unreasonable apprehension or suspicion of harm being insufficient.
The defendant James Weldon was indicted and tried in the Superior Court of DeKalb County for the offense of assault with intent to murder and was convicted of shooting at another. The prosecuting witness testified for the State in substance that on the night of November 25, 1950 he and another police officer received a call to go to a designated address; that they first talked to the defendant's wife and landlady on the porch of the house, and then went to a small house about a hundred feet in the rear in which the defendant was living; that he knocked on the door and the defendant asked who was there; that they replied it was the police; that the defendant then fired five shots through the door with a shotgun; that the first load hit the witness about the waist and abdomen and his companion pushed him off the porch so that he would not receive the other loads of shot; that about 40 shot struck his body, as a result of which he required hospitalization; that the police officers went to the squad car, radioed for help and returned to the house; the witness, having procured his shotgun from the car, fired into the house several times. The defendant then came out of the door with his hands up and the witness began to search him, whereupon the defendant attempted to grab the witness's gun and the witness hit him several times, knocking him down. He was then placed in the police car and handcuffed.
One witness for the defense testified that he and the defendant had been drinking bootleg liquor all that afternoon and when he left the defendant was as drunk as he had ever seen a man get. A former employer testified in substance that the man was a good worker and well mannered when he had not been drinking. The defendant's brother testified on direct examination as follows: The defendant contended in his statement to the jury that he had been drinking that afternoon, after which he had gotten into an argument with his wife about another man; that she had gone out threatening to bring back the man and have him 'beat up' the defendant; that when he heard the knocking on the door he asked who was there but did not hear the reply and, assuming it was the man his wife had gone for, he fired through the door, and that he then surrendered.
Following conviction the defendant made a motion for a new trial on the general grounds which was later amended by the addition of seven special grounds. The overruling of this motion is assigned as error.
Herbert Johnson, Henry M. Hatcher, Jr., and R. R. Rhudy, all of Atlanta, for plaintiff in error.
Clarence Peeler, Jr., Asst. Sol. Gen., Roy Leathers, Sol. Gen., Decatur, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts).
1. In the first ground of the amended motion for a new trial error is assigned on the testimony of the police officer that the defendant emerged from the house with his hands in the air, and, as he got close enough to the witness, attempted to seize his shotgun, which evidence was objected to on the ground that it referred to another crime not incorporated within the indictment. Evidence of the commission of a crime other than the one charged is generally not admissible. Cawthon v. State, 119 Ga. 395(2), 46 S.E. 897. However, such evidence may be admissible as bearing upon the questions of motive or intent, or when it forms part of the res gestae, or is evidence of guilty knowledge, or tends to show other attempts by the accused to commit the same crime upon the victim of which he stands charged. See Fowler v. State, 189 Ga. 733, 8 S.E.2d 77; Robinson v. State, 62 Ga.App. 355, 7 S.E.2d 758. As stated in Floyd v. State, 143 Ga. 286(2), 84 S.E. 971: 'Acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae', and where, as here, the defendant came out of the house, testimony that almost immediately thereafter he attempted to seize the officer's gun would have a direct bearing, as being part of the res gestae and tending to refute the self-defense theory of the defendant. This ground is without merit.
2. The second and third grounds of the amended motion for a new trial contend that the court erred in...
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...Haire v. State, 209 Ga. 378(2), 72 S.E.2d 707. This cross examination may delve into particular transactions. See Weldon v. State, 84 Ga.App. 634(2), 636-637, 66 S.E.2d 920. Of course the hypothetical question must embody the facts offered in evidence by the State against the defendant. See......
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