Willingham v. State
| Decision Date | 05 September 1968 |
| Docket Number | No. 43553,No. 1,43553,1 |
| Citation | 163 S.E.2d 317,118 Ga.App. 321 |
| Parties | Martha WILLINGHAM v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In a prosecution for shooting at another a volunteered statement by the arresting officer, in response to a question as to what had happened on the occasion, that he heard the defendant remark that she had stolen money should have been excluded unless it could show or tend to show a motive for the shooting, in which event admission of the remark should be restricted by the court as admitted for that purpose only.
2. Where a motion for mistrial was made after the witness volunteered that he had heard the defendant remark that she had stolen money and the court overruled the motion without having restricted the purpose for which the evidence was allowed, and without taking any corrective measure of any kind, harmful error requiring the grant of a new trial appears.
Martha Willingham, appellant here, was tried under indictment for assault with intent to murder and found guilty of shooting at another. In her unsworn statement to the jury appellant related that she went to the home of Gail Williams looking for William Lee, to whom she had entrusted money for a business venture; that Lee had put Miss Williams in the house, using for that purpose the money which appellant furnished to him from funds saved from her earnings and allotment from her Army husband; that Lee was spending time with Miss Williams at the house and appellant had requested that her money be returned; that upon finding Lee at Miss Williams' house she demanded her money and an altercation ensued; that Lee saw the gun in appellant's hand and the two of them began tussling, when the gun went off injuring Miss Williams; that after appellant and Lee took Miss Williams to the hospital appellant demanded that Lee return her money and remove his clothes and effects from appellant's house since her husband was coming home; that appellant called a policeman to assist in evicting Lee and in obtaining the pistol from him, of which he had gained possession.
In rebuttal the State called the police officer who answered the disturbance call. He was asked to relate what happened when he recovered the pistol from Lee, and he testified that when he arrived appellant and Lee were 'in a kind of upset feud' and were 'fussing and carrying on'; that during the process of recovering the pistol and of Lee's removal from appellant's premises 'they were still arguing and I did hear the defendant state that she had stolen, she had done everything to keep him up, that he never had worked, wouldn't work and that the bitch should have been shot.'
A motion for mistrial was made by appellant on the grounds that by the volunteered remark as to appellant having stolen, the State had illegally placed her character in issue when she had not done so. The State contended that this testimony was in rebuttal of appellant's statement as to the source of the money furnished to Lee, and the trial court, while apparently of the view that the officer would not have the right to testify as to matters involving her character even if appellant had opened up for inquiry the source of the money, overruled the motion for mistrial and failed to rule the remark out or to take any corrective action whatever.
On the overruling of the motion for mistrial and on the court's failure to inform the jury to disregard remarks about appellant's character and to inform them that the testimony was being allowed for some purpose other than character evidence, appellant enumerates error.
John McGuigan, Atlanta, for appellant.
Lewis R. Slaton, Sol. Gen., J. Walter LeCraw, Jack Mallard, Atlanta, for appellee.
1. The State contends that appellant in effect admitted in her statement that she was guilty of larceny after trust in regard to the money she had saved from the allotment from her husband who was in the Army, and that the officer's testimony as to her having stated that she had stolen was no worse than this admission. The argument is that the Army has two kinds of allotments; that the first kind is the required allotment for dependents; that the second kind is optional as a means of saving money during service in the armed forces; that the latter kind has an economic value to the nation in reducing the amount of money which has to be sent overseas and in giving the soldier a cushion of savings to help him get started in civilian life when he returns from service; and that when the soldier makes an allotment of the second kind the money is sent by the government monthly to the named relative, and the soldier expects that money to be saved for him to use upon his return.
Whatever may be the practice as to Army allotments, and whatever a hypothetical soldier may expect, appellant's statement does not establish that she was receiving money under the both types of allotments or that she was to hold any money in trust for her husband. She stated only: 'It was money I had saved form my husband who was in the Army, from my allotment, and for where I work on the side * * * My husband was coming home and I didn't want my husband to know I just up and give away this kind of money because he didn't have anything * * *'
We conclude that the unrestricted admission as to appellant having stolen was harmful, in that it did place her character in issue when she had not done so.
2. 'It is a fundamental principle in our system of jurisprudence, intended to protect the individual who is charged with crime, and to insure him of a fair and impartial trial before an unbiased jury, that the general character of the defendant and his conduct in other transactions is irrelevant unless the defendant chooses to put his character in issue. (Citations omitted). It is universally recognized * * * that Bacon v. State, 209 Ga. 261, 262, 71 S.E.2d 615, 616. 'Where a witness for the State in a criminal case voluntarily injects into the trial improper and prejudicial matter, on motion for a mistrial based thereon whether mistrial...
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