Roberts v. State , 76 Ga. App. 167 ( 1947 )

The evidence being amply sufficient to sustain the verdict on the general grounds, and the special grounds being without reversible error, the judgment is affirmed.

DECIDED NOVEMBER 1, 1947. REHEARING DENIED NOVEMBER 26, 1947. The defendant was indicted jointly with his son and his brother, and was tried separately, and convicted of voluntary manslaughter. He filed his amended motion for a new trial, which was overruled. On this judgment he assigns error.

The jury were authorized to find that the deceased and some of his relatives had a previous difficulty with the three accused. We gather from the evidence that on the day of the homicide and on previous occasions both factions had quarreled, engaged in throwing rocks, sticks, and finally in a shooting at the home of the deceased by one of the accused, some time shortly previous to the homicide: Within about an hour after the last difficulty between them, before the homicide, the defendant, who was convicted, armed with a shotgun, and the other two accused, both armed with pistols, placed themselves near a cross-road not far distant from the defendant's house, and the house of the deceased. The jury were authorized to find from the evidence that the purpose of the three accused in taking this position was to prevent the deceased and some of his companions from going to the home of the deceased, who lived with his mother. While the three accused were thus situated, two white men, in company with a negro of the deceased's faction, passed by and stopped where the three accused were stationed by the roadside. Shortly thereafter the deceased, who had gotten out of an automobile in company with several others of his faction, which automobile was proceeding toward the home of the deceased, was walking in the road in the direction where the three accused were stationed beside the road. The two white witnesses had alighted from their car when they drove to within a few feet of where the accused were stationed, and shortly after they alighted from their car the deceased approached going toward the white men, near the car, with a shotgun in one of his hands, not in a shooting position. Mr. Clarence Roberts, one of the white men, told the deceased as he began walking toward the witness, not to get out of the road, but to go on. The deceased stated that he just wanted to know who did it, referring to the shooting. Whereupon the brother of the defendant, with an oath, said that he did it. The jury were authorized to find that as the deceased turned to go back into the road at the direction of the white man, and away, the defendant and his brother and his son began shooting the deceased with the weapons which they had, inflicting many wounds upon the deceased with a shotgun and pistol, from which the deceased instantly died. The jury were authorized, from the evidence, to find that the two white men who were present were impartial witnesses and that at the time of the homicide the deceased did nothing to indicate that he at any time used or intended to use the shotgun which he held in his hand. The deceased never did attempt to use his gun before the three accused fired upon him. Indeed, the jury were authorized to infer that he never did use it, even after they fired upon him. Both factions engaged in the trouble were interrelated. The court correctly charged that the evidence would apply to either of three possible verdicts: Murder, voluntary manslaughter, or not guilty. The defendant in his statement claimed self-defense. We will discuss such other evidence as becomes necessary in the decision of the case. 1. As to the general grounds, the evidence amply sustains the verdict, for the jury were authorized to find that the witnesses for the State unequivocally stated that as the deceased approached them they told him to get back into the road and to go on. The only remark the deceased made was, "I wanted to find out who did it [referring to the shooting at his home prior to the homicide]." As the deceased made this remark he walked back toward the road and after the brother of the defendant stated with an oath that he did it, and while the deceased was leaving the scene, the three accused fired upon him.

2. Special ground 1 assigns error because when a witness for the defendant was on the stand she was asked if the deceased made any threats against the life of the defendant. She stated that the deceased had. On cross-examination she stated that the threats had not been communicated to the defendants. State's counsel moved to exclude the testimony on the ground that such threats had not been communicated, whereupon the court stated that he would exclude the evidence for the time being. We think the assignments of error on this ground do not require a reversal for two reasons: First, the ruling was made conditionally, and the court's attention was not thereafter called to the conditional ruling; second, should we consider this ruling sustained, construing the evidence in the case most strongly to sustain the verdict, the defendant and not the deceased was the aggressor at the time the deceased was killed.

3. Special ground 2 assigns error because the defendant offered a witness to prove that the deceased had made threats to the witness against the defendant and that the witness had communicated these threats to the father of the defendant and the defendant proposed to prove by the father that the threats were communicated to his son, the defendant. While it is true that the court put the ruling on the basis that to permit the father to testify what the witness who heard the threats of the deceased told the father would be hearsay and inadmissible, it is our opinion that the judgment should not be reversed or considered for the reason that it nowhere appears in this ground of the motion what the threats were, or the nature of them. There is no merit in this ground.

4. Special ground 3 assigns error upon an excerpt from the charge of the court on voluntary manslaughter. When we view the charge as a whole on the subject of voluntary manslaughter, we do not find that this assignment of error requires a reversal.

5. Special ground 4 assigns error on the following excerpt from the charge of the court: "The court has permitted certain evidence to be introduced relative to alleged statements made by the deceased against the defendant prior to the alleged homicide. I charge you that if you find that any threats were made by the deceased against the defendant prior to the homicide, and you further find that these threats were not communicated to the defendant, then I charge you that you would not consider those threats, if you find any were made, as any justification for the defendant in taking the life of the deceased. I charge you further that if you find that there were uncommunicated threats by the deceased against the defendant, they would be admissible only for the purpose of showing the state of mind of the deceased toward the defendant. I charge you further if you find that there were previous threats by the deceased and they were communicated, they are not to be considered by you unless you find that there is some proof of attack or other hostile act showing the intention to carry the threat, if any, into execution." The gist of the assignment of error upon this charge is that it tended to confuse the jury for the reason that the court had excluded from the consideration of the jury evidence on behalf of the defendant that an uncommunicated threat had been made against him and that after making such ruling the court should not have charged as to uncommunicated threats. We are unable to see how this charge could have been harmful to the defendant for the reasons urged. There was evidence, on behalf of the defendant, that a threat by the deceased had been communicated to the defendant and we construe the charge of which complaint is made as merely explanatory of an uncommunicated threat and a communicated threat on the part of the deceased. In either event, the defendant would not have been justified in taking the life of the deceased merely because of such previous threats unless it also appear that in the final affray the deceased was the aggressor. It is the contention of able counsel for the defendant that the evidence was sufficient to show that the deceased was the aggressor, but we find no evidence of the State or the defendant or any circumstances relative to the case sufficient to sustain this view for the defendant. It is true that the defendant's statement, unsupported by any evidence or circumstances might have been sufficient to warrant such a contention. It is our duty as a court of review, on an assignment of error on the overruling of a motion for a new trial, to construe the evidence most strongly to sustain the verdict, and most unfavorably to the contentions of the accused.

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.