Wilson v. State
| Docket Number | 8250. |
| Decision Date | 16 July 1931 |
| Citation | 160 S.E. 319,173 Ga. 275 |
| Parties | WILSON v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied Sept. 17, 1931.
Syllabus by the Court.
Defendant's remedy is by direct bill of exceptions to Court of Appeals where motion for change of venue in murder case is overruled defendant cannot except pendente lite to judgment denying change of venue and after conviction assign error thereon in reviewing judgment overruling motion for new trial (Pen. Code 1910, § 964, Laws 1911, p. 74; Const. art. 6, § 2, par. 5, as amended in 1916).
Where the defendant in a murder case moves for a change of venue and his motion is overruled, his remedy to review that judgment is by direct bill of exceptions to the Court of Appeals. He cannot except pendente lite to such judgment and, after conviction, assign error thereon in a bill of exceptions brought to review a judgment overruling his motion for new trial and to set aside his conviction.
Evidence of another crime is not admissible to show defendant's guilt of other crime; evidence of defendant's commission of another offense is admissible where it tends to establish crime charged; testimony that defendant on night of homicide had assaulted other persons whom deceased undertook to help held admissible.
Evidence of the commission of one crime is not admissible on the trial of the defendant for another crime, where the sole purpose is to show that the defendant is guilty of such other crime; but such evidence is admissible where there is some logical connection between the two from which it can be said that the proof of the one tends to establish the other; as where the extraneous crime forms part of the res gestæ, or tends to prove malice, intent, motive, or the like. The court did not err in refusing to rule out the evidence of a witness for the state that about 8, 8:30, or 9 o'clock on the night of the homicide he was at the home of Mrs. English, where the homicide occurred, that she and one of her daughters and the defendant were engaged in pouring water on each other, and that they became enraged and got into a fight, in which the defendant knocked Mrs. English down and then knocked her daughter down; there being evidence tending to show that the deceased undertook to help Mrs. English up when she was knocked down, that the defendant drew his pistol and said, "The son of a b-- that doesn't like it, step out," that thereafter the defendant and the deceased were quarreling at the home of Mrs. English shortly before the homicide, and there being facts and circumstances from which the jury could infer that there was bad blood between the deceased and the defendant, and that the assaults upon the women and the homicide were parts of one continuous transaction.
Statement of trial judge that any juror related within prohibited degree to affiant, who was reputed father of deceased, would be disqualified, did not preclude state from showing that affiant was not father of deceased; where defendant introduced affidavit to prove relationship of prospective juror, admission of affidavit of first affiant's son that his father's mind had not been clear for more than one year, due to paralysis, held not error.
The defendant moved for a new trial upon the ground that one of the jurors who convicted him was disqualified, because he was related to the reputed father of the deceased within the ninth degree; and introducd evidence in support of this contention. In rebuttal the state introduced the affidavit of the reputed father, in which he denied that he was the father of the deceased, denied that there was any relationship between him and the family, and deposed that he was familiar with the history of his family by actual knowledge and by reputation in the family. The court did not err in overruling the objection of the defendant to this affidavit upon the ground that the statements therein were irrelevant, for the reason that the issue as to whether affiant was the father of the deceased or not was not then under consideration, as the judge, upon the call of the case for trial, stated that any one related within the prohibited degree to affiant would be disqualified from serving on the jury, and it became the law of the case that relationship to affiant disqualified a juror from serving in the case, regardless of whether affiant was the father of the deceased or not. Such statement of the trial judge did not become the law of the case upon this subject, and did not preclude the state from showing that the affiant was not the father of the deceased. The court did not err in overruling the objection of the defendant to the introduction of the affidavit of Gray Bales, touching the mental condition of W. S. Bales, on the grounds of objection urged to its admission, and which are fully set out in the opinion.
Persons having personal knowledge can show relationship of jurors to prosecutor in criminal case; witnesses may testify to relationship of jurors to prosecutor without having been present at birth, marriage, or death; members of family circle can testify to relationship as coming within their own knowledge; relationship of deceased person cannot be proved by his declarations, or by general repute in community; where court admitted illegal testimony on relationship of juror to prosecutor, reviewing court should remand case to judge to redetermine relationship, excluding evidence improperly admitted; new trial should not be granted on account of admission of illegal testimony on issue of relationship of jurors to prosecutor until such relationship is established upon subsequent hearing at which illegal testimony is excluded (Civ. Code 1910, § 5764).
Relationship of jurors to a prosecutor in a criminal case can be shown by persons having personal knowledge upon the subject. The witnesses must appear to have had fair knowledge or fair opportunity for acquiring knowledge upon the subject; but it is not necessary to show that the witnesses were present at the birth, marriage, or death, to be competent to testify as to relationship. The theory is that the constant, though casual, mention and discussion of important family affairs, whether of present or past generations, puts it in the power of members of the family circle to become fully acquainted with the original knowledge and the consequent tradition upon the subject. Witnesses having such knowledge can testify as to relationship as coming within their own knowledge.
(a) Relationship may be established by the declarations of deceased persons, related by blood or marriage, or by general repute in the family, or by genealogies, inscriptions, family trees, and similar evidence.
(b) Relationship of a deceased person cannot be proved by his own declarations; but the fact of relationship must be shown by other evidence.
(c) Such relationship cannot be proved by general repute in the community or neighborhood.
(d) Some of the affidavits introduced by the state to disprove relationship of the jurors to the prosecutor do not come within the methods of proving or disproving relationship under the rules above stated; and should have been ruled out on objections by the defendant.
(e) But the admission of the illegal testimony upon this issue does not require the grant of a new trial until relationship of the jurors attacked to the prosecutor is established. We reverse the order of the judge overruling the motion for new trial; and remand the case with direction that the court set aside its order overruling the motion, and that the judge again pass upon the question of the relationship of the jurors to the prosecutor, excluding the evidence on this subject which we have held was improperly admitted, liberty being granted to the state and the defendant to introduce further competent evidence upon the question of this relationship; and if, after passing upon the evidence introduced upon this subject, the trial judge finds that these jurors are related to the prosecutor, that he grant the defendant a new trial upon this ground; but if, on the contrary, he finds, upon hearing such competent evidence as may be introduced upon this subject, that the jurors are not related to the prosecutor, that he pass an order overruling the motion for new trial.
Error from Superior Court, Glascock County; C.J. Perryman, Judge.
Gordon Wilson was convicted of murder, and he brings error.
Reversed, with directions.
Defendant's remedy is by direct bill of exceptions to Court of Appeals, where motion for change of venue in murder case is overruled. Pen.Code 1910, § 964, Laws 1911, p. 74; Const. art. 6, § 2, par. 5, as amended in 1916.
Gordon Wilson was indicted for the murder of Johnny Hogan, alias Johnny Wilcher, by shooting him with a pistol. The accused was tried and convicted. To a judgment overruling his motion for a new trial he excepted, and this court reversed that judgment. Wilson v. State, 168 Ga. 672, 148 S.E. 586. The case came on again for trial at the November term, 1929, of the superior court. In the effort to obtain a jury the list of all the jurors in the jury box, both traverse and grand, was exhausted; and only ten competent jurors were procured to try the case. For this reason the court declared a mistrial. Thereupon the defendant moved that the court change the venue to some other county to be selected in the manner prescribed by law. The court overruled this motion, and the defendant excepted pendente lite.
At the February term, 1930, the court refused to call the case for trial. To this action the defendant entered a protest and filed another motion to change the venue. The court overruled this motion, and the defendant again excepted pendente lite. The case came on for trial August 20, 1930. The trial...
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