Mimbs v. State , 189 Ga. 189 ( 1939 )

1. Conviction of murder was authorized by the evidence.

2, 3, 4. Decision of assignments of error on rulings relating to admissibility of evidence, in view of previous cases cited.

No. 13095. NOVEMBER 14, 1939. Delmer Mimbs was found guilty of the murder of John Wesley Moore with a pistol, the jury recommending mercy. The defendant contended that he shot the deceased because the deceased was about to make a felonious assault by driving an automobile recklessly into the car in which the defendant and his parents were riding. The judge charged, this contention, that if the jury believed he thus acted under reasonable fears, he should be acquitted. According to the undisputed testimony, the defendant was driving his car about 9 o'clock in the morning along an unpaved public road, when the deceased approached in front, driving a car with two others in the front seat and three in the rear; and the deceased in passing another car just in front of that of the defendant slightly grazed or almost struck the other car, and passed the car of the defendant without striking it. According to testimony for the State, although the ruts of the road within which the deceased had been driving swerved toward the center of the road just before he started to pass the defendant, the road "was wide enough for two cars to pass side by side;" the deceased pulled out of the ruts to his right side of the road and within "about four inches from the ditch" on that side just before the shooting; and he did not strike any car. One witness testified: "The car [of the deceased] was somewhat passed when [the defendant] shot [the deceased]; it was passed about two feet, . . about as near as I could estimate. On his side there was plenty of room left. There was no room on our side without going off the road. There was enough room on the side [the defendant] was on that two cars could have passed." Another occupant of the car of the deceased testified: "When he shot, he was just about by us. When I saw him, he was driving with one hand and crossed his arms like this and shot him back of thecar. . . We were just about passed when he shot." A physician testified for the State, as to the nature of the bullet wound which killed the deceased, that the bullet entered and "ranged diagonally across, more toward the front;" that "the person holding the gun was just afew steps to the back," and, illustrating from the position of counsel for the defendant, that the person shooting "was just a few steps back of you, like this," and "with the two persons in motion I guess the result could have been the same."

The defendant's mother, who was an occupant of his car, testified that the deceased was "running mighty fast;" that "it looked like they were going to run into" the car in front; that her son had got out of the ruts over on his right side of the road, but "they kept on coming, and I said, ``Look out, he's going to hit us;'" and that the defendant "did it in order to keep us from being hit." The father of the defendant testified that the deceased "held the ruts," which "at that point had a tendency to lead in toward us;" that the father said, "Look out, he's going to hit us;" that the defendant "snatched the front wheels clean out of both ruts;" that the father "heard the pistol fired about when he was at our front tires — he hadn't got quite even with us — after I heard the pistol, he was about even with the steering-wheel; that he later examined the tracks of the cars, and the deceased "left the ruts about where the pistol was fired." In his statement to the jury the defendant said that the deceased almost struck the car in front and "headed right toward us, and somebody said, ``You better get out of the way, he's going to hit us,' and I got over as far as I could, and don't know why I thought of the pistol. I grabbed the pistol, but don't remember pulling the trigger. I wasn't trying to hit anybody; somehow the car turned, and I didn't know that I had hit him." A physician testified for the defendant, that, while "I would think . . he would know right from wrong," his physical and mental condition was "way below the normal, physically and mentally;" that he was aenemic, a neurotic. His parents testified as to his spells of sickness. On cross-examination by the State, the father testified, without objection, that "this boy went around aboutthere without any trouble." The jailer, called for the defendant, testified that "if you spoke to him, he would speak in a bashful manner;" that "the look in his eyes . . was foolish;" and that "he didn't give us any trouble."

The only special ground of the motion for new trial is that the court erred in admitting, over timely objection on the grounds of irrelevancy, separate and distinct transaction, and proof of character without the defendant putting his character in issue, the following testimony: "Q. Mrs. Mimbs, I believe that you testified that your boy had been a good boy all his life [the record, however, fails to show such testimony elsewhere]; do you remember the occasion when he had a fight with his first cousin? A. They run him down; it was not his fault, and it was not his first cousin either. Q. Did Delmer get hurt when they were running him down? Don't you know as a matter of fact that Delmer has said that he was the cause of this trouble? A. He was not; it was the boy, Albert Mimbs. Him and some other boys were down there at Minter; they had a grudge over Delmer. Q. Well, he did have a fight? How long did he stay in the house after this fight? A. Oh, that's all right; that has been two or three years ago; these other three boys were aggravating him, and he commenced running them, and I looked back and he was lying on the ground. I thought one of them had knocked him down. I went back and got him. Q. And his hand was cut? A. Yes, sir, his hand was cut a little. I think he said Lou Mimbs did it. Q. He had cursed the other boys, hadn't he?" Before the witness answered the last question, the court said: "Rule out anything about this transaction." The defendant then moved for a declaration of mistrial, on the ground that the previous admission and its effect were prejudicial and calculated to mislead the jury, even though the testimony had been withdrawn. The judge overruled this motion, and immediately instructed the jury: "You will not consider the evidence of this transaction, as already instructed, gentlemen." The motion for new trial makes no reference to the motion to declare a mistrial, and the exception is limited to the admission of the evidence over objection, and its damaging effect on the jury, although it was later ruled out. 1. The verdict of guilty of murder was authorized by the testimony for the State that the defendant without justification shot the deceased with a pistol after the deceased had already met and passed in his automobile to his right of the defendant's car, and not, as the defendant contended under his testimony, before the cars had met and while the deceased was or appeared to be assaulting the defendant by unlawfully driving directly toward the car occupied by the defendant and his parents.

2. Evidence as to an offense other than that charged against a defendant is not admissible for the purpose of showing his guilt of the offense of which he stands accused, unless the evidence as to the other offense is offered for the purpose of proving and tends to show a common design, scheme, plan, or purpose, or some other rational connection with the offense for which he is being tried. Frank v. State, 141 Ga. 243 (2-a, c), 256-267 (80 S.E. 1016); Fluker v. State, 184 Ga. 809 (4) (193 S.E. 749), and cit. Where the good character of a defendant is put in issue, evidence as to general bad character with respect to the particular trait may be shown in rebuttal; but in so doing it is not permissible to prove specific acts, except on cross-examination for the purpose of testing the knowledge of the defendant's witnesses, and except for the purpose of impeaching knowingly false statements made by the defendant himself to the jury or by his witnesses on cross-examination. Doyal v.State, 70 Ga. 134 (5), 147 and cit.; Andrews v. State,118 Ga. 1 (2), 3 (43 S.E. 852); Baldwin v. State,138 Ga. 349 (2), 350 (75 S.E. 324); Dotson v. State, 136 Ga. 243 (2), 244 (71 S.E. 164); May v. State, 185 Ga. 335 (2), 339 (195 S.E. 196); Camp v. State, 179 Ga. 292 (175 S.E. 646); Sisk v. State, 182 Ga. 448 (3), 452 (185 S.E. 777);Worthy v. State, 184 Ga. 402 (2) (191 S.E. 457); Ozburn v. State, 87 Ga. 173 (4), 180 (13 S.E. 247); Powell v.State, 101 Ga. 9 (1, a, b), 16 (29 S.E. 309, 65 Am. St. R. 277); Warrick v. State, 125 Ga. 133 (6), 141 (53 S.E. 1027); Brantley v. State, 133 Ga. 264 (2) (65 S.E. 426);Moulder v. State, 9 Ga. App. 438 (71 S.E. 682);Henderson v. State, 5 Ga. App. 495 (3) (63 S.E. 535);McKenzie v. State, 8 Ga. App. 124 (2) (68 S.E. 622);Smith v. State, 11 Ga. App. 89 (4) (74 S.E. 711); Code, § 38-202. As to the rules relating to the impeachment of witnesses, see Code, § 38-1804; Coleman v. State, 94 Ga. 85, 86 (21 S.E. 124); Sheffield v. Hammond, 41 Ga. App. 76 (151 S.E. 663), and cit.

3. Where illegal evidence is admitted over objection, the subsequent action of the court in ruling out such evidence, with an instruction to the jury not to consider it, will ordinarily cure the error, so that the previous erroneous admission of the evidence will not require a new trial. Buchanan v. State,137 Ga. 774 (1, a) (74 S.E. 536); Williams v. State,138 Ga. 825 (2) (76 S.E. 347); Rentfrow v. State, 123 Ga. 539 (51 S.E. 596); Annunciato v. State, 176 Ga. 787 (2), 790 (169 S.E. 3); Withrow v. State, 136 Ga. 337 (3) (71 S.E. 139); Worthy v. State, 184 Ga. 402 (3) (191 S.E. 457), and cit.

4. Applying the rules set forth in the two preceding paragraphs, it is doubtful in the instant case whether the character of the defendant for peaceableness was put in issue by him; but since the specific act the State sought to prove was trivial in character, and could not be taken to illustrate the character of the defendant for violence, and since the judge specifically withdrew such testimony from the consideration of the jury, and instructed them not to consider it, its admission will not authorize the grant of a new trial. Especially is this true where, as here, no exception was taken to the denial of the motion to declare a mistrial. See Wheat v. State, 187 Ga. 480 (6) (1 S.E.2d 1), and cit.

Judgment affirmed. All the Justices concur.