Worthy v. State

• Decision Date: 14 May 1937
• Docket Number: 11781.
• Citation: 191 S.E. 457,184 Ga. 402
• Parties: WORTHY v. STATE.
• Court: Georgia Supreme Court

191 S.E. 457

184 Ga. 402

WORTHY v. STATE.

No. 11781.

Supreme Court of Georgia

May 14, 1937

Error from Superior Court, Fulton County; John D. Humphries, Judge.

James Worthy was convicted of murder, and he brings error.

Affirmed.

RUSSELL C.J., dissenting.

Syllabus by the Court.

1. In the refusal to declare a mistrial, the discretion of the trial court will not be disturbed, unless it is made to appear that a mistrial was necessary to preserve the right of fair trial. Manchester v. State, 171 Ga. 121(7), 155 S.E. 11.

2. In a criminal case, the state is permitted to rebut statements as to alleged facts made by the defendant to the jury. Camp v. State, 179 Ga. 292(1), 175 S.E. 646, and cit.; Doyle v. State, 77 Ga. 513(2), 515; Sisk v State, 182 Ga. 448(3), 185 S.E. 777; Barnes v State, 24 Ga.App. 372(4), 100 S.E. 788; Turner v State, 43 Ga.App. 799(16), 815, 160 S.E. 509.

3. The exclusion from evidence of an inadmissible statement by a witness, and a prompt instruction to the jury to disregard it, will ordinarily suffice to avoid any material prejudice to either party and preclude the necessity of a mistrial. Withrow v. State, 136 Ga. 337(3), 71 S.E. 139; Southern Marble Co. v. Pinyon, 144 Ga. 259(1), 260 86 S.E. 1086; Sisk v. State, supra. Especially would this rule have application where, as in one instance in this case, the statement of the witness was in rebuttal of an alleged fact previously narrated by the defendant in his statement to the jury, and where the statement of the witness related merely a question asked the defendant before the trial without stating the reply; and where, in the other instance, it is not made to appear either that the question by the state, calling forth the statement of the witness, was objected to, or that the statement was voluntary and not in response to a question, so as to preclude an opportunity to object.

4. 'For the admission of evidence to be a ground for a new trial, it must appear what objection was urged at the time it was offered.' Lively v. State, 178 Ga. 693, 694, 173 S.E. 836; McDow v. State, 176 Ga. 764(3), 769, 168 S.E. 869. Exception was taken to the admission of the pistol, which the state claimed was used in the homicide, but this ground showed merely that 'timely objections were made to the court which same objections were overruled,' without disclosing their nature.

5. The testimony as to an alleged admission by the defendant was not inadmissible on the ground that the identification of the defendant by the witness as the person who talked to him was based on mere hearsay. This paragraph is discussed in the opinion.

6. The evidence, including this and other admissions, when taken with the other testimony, was sufficient to authorize the verdict of murder.

Statement of Facts by Jenkins, Justice.

James Worthy was indicted and convicted of murder, without recommendation. A witness for the state, after testifying, 'I know of my own knowledge that [the defendant] had that particular gun after that night,' stated, 'That is the gun he shot those two girls with.' Counsel moved for a mistrial because of the latter statement. The judge promptly told the jury, after excluding the testimony, 'not to be influenced by that remark,' and 'I think the remark of the witness was prejudicial and improper, and I ask the jury not to consider it.' The record does not indicate whether the statement of the witness was volunteered, or was in response to a question by the state, and whether an objection was made by the defendant, and, if so, what objection. In his statement to the jury the defendant said: 'I never killed a man in my life; never having had it in my heart to kill a man.' In the rebuttal testimony of the state, a witness narrating a conversation with the defendant after arrest testified, 'I asked him if he was the man that shot a couple of people in Atlanta.' Counsel again moved for a mistrial because of this statement. The judge excluded the testimony and promptly told the jury, 'Don't be influenced by what the witness just said.' As in the previous statement for which a mistrial was moved, the record fails to indicate whether the statement of the witness was volunteered, or was in response to a question by the state, and what, if any, objection was made by the defendant. Nor does the record indicate that the defendant made any reply to the question asked by the witness.

The evidence of the state showed that the deceased, a street car conductor, was found dead in the early night in his street car at a corner of two Atlanta streets, with a bullet wound in his body. The bullet was identified and admitted in evidence. A witness for the state testified that he saw the defendant shortly before the body was found, and within a block of the homicide, wearing 'an old grayish looking dirty cap, and a kind of reddish colored sweater,' and having 'something black in his hand. I don't know whether it was a pistol or not, but he pulled it out of his pocket.' Another testified to the same effect, and as to the defendant 'having on a long-billed cap, a brown sweater, and dark breeches,' a 'grayish-looking cap.' A woman testified that, at the place where the body was found, 'I heard a kind of commotion at the street car, and I turned around and saw a man climb up and shoot the conductor. He told the conductor to open the door, and the conductor told him he was not going to open the door, and the man cursed him and climbed up and shot him. * * * There is a street light on that corner where the street car was * * * The man I saw that night had on a brown sweater and overalls and a grayish looking cap. * * * The man I saw that night was just about the same size as this one [referring to the defendant], but I didn't get a look at his face * * * I noticed his shoes; they were black shoes, but they were not any good; they were just cut out. * * * They were cut or torn out. * * * I don't know that strips were cut out, but there were holes in the shoes.' The shoes of the defendant were 'something like the shoes the man had on that night.' Two witnesses, who operated a restaurant, testified as to one of them owning an 'owlhead' pistol, which was kept under a mattress in their bedroom adjoining the restaurant; that they missed the pistol on the night of the homicide, and when it was discovered the next day, there was one empty cartridge in it; that the owner of the pistol had not fired it; that the defendant had eaten in the restaurant about an hour before the homicide, and had gone back to the bathroom where the pistol was; that six days after the homicide the defendant took the same pistol. Another witness, to whose testimony exception was taken, stated that six days after the homicide he was with a female companion at night in a rooming house on Decatur street in Atlanta; that the defendant poked a gun through a hole in the door of the room, offered to pawn it to him for 50 cents, and made the statement quoted in the opinion. The witness testified that he did not then know the defendant, but the woman with him said it was the defendant; that he afterwards occupied the same jail cell with the defendant until the day preceding the trial; and that the defendant there talked to him, and made the statement quoted in the opinion. The record does not show that any objection was made to the testimony as to the woman's statement at the time of the first conversation with the defendant. The witness further testified that he 'turned the lights on'; and that he took the gun and looked at it in his hand, and it had an 'owl head' on the side. He positively identified the pistol in evidence as the one shown him by the defendant. The woman companion of this witness...