Ellison v. State , 197 Ga. 129 ( 1943 )

1. The undisputed testimony, which was also in effect admitted by the defendant in his statement to the jury, showed that the deceased woman with whom he had been living illicitly had been beaten by him with a tree limb and kicked or stamped to death; and that he had dragged her and pulled out much of her hair during repeated attacks for about two miles along a country road, because he had become enraged at her request to buy groceries. The only material contentions by the defendant in his statement were that "she hit me and I hit her, we fought all over the place;" and that he "didn't intend to kill her." Testimony by the son of the deceased, the only eyewitness, that the deceased had tried to fight the defendant during his attack, "but she couldn't," was corroborated by testimony of the sheriff, who saw the defendant on the same day, after the homicide, that there was no bruise, mark, scar, or cut on him. Accordingly, on the general grounds, the verdict of murder without a recommendation was fully authorized, and there is no merit in the special grounds or contentions that no malice or murderous intent was shown; that the evidence at most authorized a conviction of voluntary or involuntary manslaughter; and that the court erred in refusing to charge "the law relative to accident." As to malice and the existence of murder, even without a specific intention to kill, under circumstances such as were here shown. see Gallery v. State, 92 Ga. 463 (2) (17 S.E. 863); McMillan v. State, 35 Ga. 55, 59; Code, §§ 26-1003, 26-1004.

2. The court did not err in the exercise of its discretion, after a preliminary examination as to competency, in admitting the testimony of the eleven-year old son of the deceased, where such examination disclosed sufficient intelligence to testify as well as an understanding of the nature of an oath. Johnson v. State, 61 Ga. 36; Style v. State, 175 Ga. 95 (165 S.E. 7); Bell v. State, 164 Ga. 292 (2) (138 S.E. 238); Moore v. State, 79 Ga. 498 (3) (5 S.E. 51); Holden v. State, 144 Ga. 338 (2) (87 S.E. 27), and cit.; Code, § 38-1610. Since the question of competency was one of law for the judge to determine, he did not err in failing to charge the jury relative to that question. Reece v. State, 155 Ga. 350 (1-b) (116 S.E. 631); Moore v. State, supra. No question is raised as to whether the judge should have charged on the credibility of the witness by reason of his age.

3. Where a new trial is sought on the ground of newly discovered evidence from witnesses, "affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced." Code, § 70-205. This requirement as to naming "associates" in supporting affidavits is not met by a mere statement that the witnesses "run with and associate with all the best people in [the] county of their color," without naming any such associate, since, under the ruling in Ivey v. State, 154 Ga. 63 (6) (113 S.E. 175), the affidavit in support of the witness "must give the names of his associates," and "a statement that he keeps good company" is not sufficient to meet the statutory requirement. See Anderson v. State, 190 Ga. 455 (5) (9 S.E.2d 642), and cit.

(a) The judge did not abuse his discretion for the additional reasons that the alleged newly discovered evidence as to insanity was limited to statements that the defendant, at uncertain times before the homicide. had "acute spells of anger or mad fits which would last a half a day at a time," but was "humble" and "law-abiding" at other times, and merely that he was "not of sound memory and discretion," without any statement as to his inability to distinguish between right and wrong, or as to any delusional insanity; and this evidence was met by a counter-showing of the State that he was of average intelligence and capable of distinguishing right from wrong.

4. The fact that one of the witnesses for the State made an unsworn written statement that "under all the circumstances I have learned since conviction of [the defendant], I recommend him for mercy in form of life imprisonment," does not conform to the rules authorizing a new trial on newly discovered evidence, and is not otherwise relevant as a basis for a new trial.

The same rule applies to the signed written statements by eleven of the trial jurors, that they now recommend mercy by life imprisonment, because after the conviction of the defendant it "had been brought to [their] attention that there were mitigating circumstances . . due to the infancy" of the son of the deceased, who testified as a witness, "and the condition of the defendant's mind, which were not brought out at the trial." Such a statement affords no evidence of insanity either at the time of the homicide or at the present time, and amounts to nothing more than a recommendation, which would be relevant only before a pardoning or commuting authority. See Corbitt v. State, 7 Ga. App. 13 (66 S.E. 152).

Judgment affirmed. All the Justices concur.

No. 14735. NOVEMBER 30, 1943. Grady Ellison was found guilty, without a recommendation, of the murder of Nettie Mobley by beating and striking her. The original motion for new trial contains the general grounds, and additional exceptions that no murderous intent or malice was shown by the evidence or the defendant's statement; and that at most the evidence authorized a conviction of voluntary or involuntary manslaughter only (the law as to which was charged without exception). In a first amendment, the defendant also excepted to the failure of the judge to charge "the law relative to accident;" and excepted to an implied ruling, which permitted Ossie Ellison, the eleven-year old son of the deceased, to testify for the State, on the ground that his age made him incompetent to testify; and excepted to the failure to instruct the jury as to the competency of this witness. In a second amendment, the defendant set forth alleged newly discovered evidence, with a showing as to diligence by himself and his counsel, but without any supporting affidavit naming the associates of the new witnesses, except as stated in the syllabus. Seven affidavits were attached to this amendment, to the effect that the defendant was "not of sound memory and discretion," had "sharp acute spells of anger or mad fits which would last sometimes a half a day at a time," but at other times was humble, peaceable, and hard-working. None of this evidence related to his condition on the day of the homicide; and there was nothing as to his inability to distinguish between right and wrong. At the hearing of the motion for new trial, the solicitor-general made a counter-showing by introducing four affidavits of persons who had known the defendant for many years, that he was a "negro of average intelligence, and is capable of distinguishing right from wrong;" and that they had never observed anything in his manner or conduct to indicate that there was anything wrong with his mind.

In his last amendment, the defendant also set forth an unsworn written statement by one of the State's witnesses, that "under all the circumstances I have learned since the conviction of [the defendant] I recommend him for mercy in form of life imprisonment;" and the defendant alleged that, if another trial was granted, it was expected to prove by this witness "the facts which would reveal at least recommendation of mercy for defendant." All that the witness himself stated, however, was the language above quoted, and "the facts" referred to by the defendant were not indicated.

Attached to the last amendment of the motion were also written statements, signed by eleven of the trial jurors, that "since the conviction of the defendant it had been brought to [their] attention that there were mitigating circumstances in connection with this case due to the infancy of the witness [above mentioned] and the condition of the defendant's mind which were not brought out at the trial;" and that "in view of all the circumstances now appearing," each of these jurors "recommends mercy in the form of life imprisonment."

For the State, Ossie Ellison, the eleven-year old son of the deceased, before being allowed to testify, was first interrogated by the court and the solicitor-general with respect to his knowledge of the nature of an oath and his schooling. He replied: "I know what the truth is. If you tell a lie or story, it puts you on the chain-gang. It is a bad thing to tell a lie." He said that he knew "what an oath is;" that "if you swear to a story," you go "to the devil;" that he had been to school for one year, but was then farming, helping his "uncle hoe cotton." Upon being permitted to testify further, he swore that his mother, Nettie Mobley, and the defendant had been living together; that while the three were walking home at night from Waynesboro, and after the defendant and the mother had started fussing in town over her asking the defendant several times to buy groceries for the next week, the defendant tore off a limb in a pecan orchard and "went to beating her and cussing her . . and stomped her, and throwed her down on the pavement road, and throwed her down in water, and dragged her by her hair, and beat her all out in the woods; and he stuck her head between two trees in all those thorn bushes and briers and beat her; and where that dirt road turns off from that pavement road, he just stomped and beat her, hitting her all across the head, and stomped her tooths out, and stomped a hole up here in her head, and kicked her all the way out yonder until she died;" that he "heard something tear loose in her stomach, and then he just beat and stomped her;" that the mother of the witness had "said she had to have something to eat; that was the time he jumped on her; he got a pecan limb out of a tree in that orchard and went to beating her with it," throwing her on the pavement, and doing other things as the witness had previously stated in the language above quoted. He said that the defendant in these attacks had pulled out her hair, which was picked up at places along the road and was in evidence, and had torn off her clothes, which were also in evidence, in a torn and bloody condition, caked with dirt. The witness also swore that, after the defendant's attack, his "mother was trying to fight [the defendant] but she couldn't;" and that "after he left he came back with another boy and he said, ``She's dead,'" and the defendant "came on to the sheriff and gave up."

Millard Green, secretary of the coroner's jury, who saw the body of the deceased, testified that "it was the worst beat-up body I think I ever laid my eyes on, she was literally beaten to death, as we found the hair and the tracks for about two miles and a half," when he retraced with the son of the deceased the way she and the defendant had come, from the start to the final place of the homicide; that he traced them through a pond and bushes; saw where "there had been struggling, and would occasionally find a handhold of hair over a distance of two miles, evidently she had torn it loose in trying to get away;" that when the hair was compared with that on the body, "it looked like the same hair;" that he estimated "the woman was beaten in eight or ten places over that two miles." As to her wounds, his testimony was similar to that of the son of the deceased: that she had a hole in her head, bruises on her neck and left breast, and "the appearances were that she had been kicked or hurt with some large instrument;" and there were many bruises, as he described, in her right side, stomach, and from her hips down to her ankles "where she had been whipped evidently with a stick or some instrument of that type, both in front and in back."

L. F. Davis, a member of the Waynesboro police force, gave testimony similar to that of the last-stated witness as to the condition of the body, the bruises and wounds, and appearances that the "area" of the beating "covered two miles;" and that the body was found 150 or 200 yards from the highway.

O. J. Cliett, a deputy sheriff, testified that he arrested the defendant at the jail, where the defendant had come voluntarily and told the deputy sheriff that he "had whipped" the deceased "and he thought he had killed her;" that the defendant told the witness where the body could be found, and the witness went to the place, could see the body in a field, and found the body badly beaten up, as described. The witness said that when he asked the defendant at the time of the arrest why he had killed the deceased, the defendant said "he caught her wrong," and "made no other statement." He also testified that he observed the defendant on the day of the homicide, and "did not see any bruises, marks, or scars or cuts on him;" that the defendant "had blood all over his britches and apparently they had been washed out but the blood wouldn't come out."

The defendant offered no evidence, and relied only on his statement to the jury, as follows: "That Saturday I come in at 12 o'clock and I asked her, I said, ``What's the matter you ain't got dinner done?' She said, ``Well, if you knowed what I know you wouldn't ask me.' That's the way it was. I said, ``You talk like you know something good.' She said, ``Yes, I does.' That is what she said to me. I said, ``That's all right, maybe you will get it done some time this evening.' That is what I told her. So I went on and got my razor, and went to shaving, and time I got through, she said, ``This bread is ready if you want it.' I said, ``Sure, I want my dinner.' And she just kept on with it, kept on with it, kept on with it, and kept on and on, and I said, ``I will bathe and put on some clothes and go to town.' She said, ``I want to go as far as your sister's to get my little girl.' I said, ``All right, you can go.' She got out at my sister's, and was to pick her up with us right at sister's. She ain't told me she was coming in to town, so a little before I got ready to come out of town here, up come her, see, and about that time my boss man said, ``Let's go, Grady,' and I said, ``I can't, I ain't ready to go. Nettie is come in town, and when we get ready to go, I will go and stay all night with my sister until the next morning.' So, she just kept on, and kept on, and brought it up again that night leaving out there, the same thing. She said, ``A man asked me something today.' I said, ``What?' She said, ``That's all I am going to tell you and no more.' And she kept on and on and started to fighting from that. That's all it was. I am going to tell you all the truth. I didn't intend to kill her at all, God knows I didn't. It wasn't in my mind to kill her. She hit me and I hit her. We fought all over the place, that's the truth, but I didn't intend to kill her, God knows I didn't; didn't have that on my mind, sho didn't, and I am sorry I done that, and I hope you all will be as light as you can. I didn't intend to do that, that's the truth, God knows I didn't. When I found out she was dead, I said, ``I'm coming on in town and give up. I didn't intend to kill her at all. So, you all do the best you can for me; be as light as you can and have some mercy on me, as God knows I didn't intend to kill her at all. Wasn't in my mind. That's all I want to say." The defendant then made a "supplemental statement:" "This grocery part, I kept a plenty that evening for her, and I been taking care of her ever since she started to staying with me. She started staying with me about the first of January. She hasn't wanted for nothing; everything she wanted, I tried to get it for her."