Smith v. State , 79 Ga. App. 595 ( 1949 )

1. Where the trial judge, during the trial of a criminal case, makes alleged improper and prejudicial remarks in the presence of the jury, and the defendant takes no exception to the occurrence at the time, but complains of it for the first time in his motion for a new trial, this ground is without merit, as the defendant can not abide the chance of a favorable verdict and, after the return of an adverse verdict, then for the first time complain of the remark by the trial judge and have the verdict set aside. See Pulliam v. State, 196 Ga. 782 (6, 7) (28 S.E.2d 139); Oglesby v. State, 73 Ga. App. 703, 707 (37 S.E.2d 837).

2. Where admissible evidence is excluded on motion of the opposite party, at a certain stage of the trial of the case, but evidence of the same fact is later admitted without objection, and the fact is not controverted, the exclusion of the testimony in the first instance is harmless error. See Loeb v. State, 75 Ga. 258 (5).

3. A charge on the impeachment of witnesses is not required in the absence of a timely request.

4. Lack of proof of venue cannot be raised under the general grounds only of a motion for a new trial.

5. The verdict being supported by some evidence, and having the approval of the trial judge, will not be disturbed.

6. The special assignments of error not specifically passed upon amount to no more than a restatement of the general grounds, and are without merit.

DECIDED JULY 11, 1949. Ralph R. Smith was tried in the Superior Court of Fulton County on an indictment charging him with murder.

The jury trying the case were authorized to find facts substantially as follows: that on November 15, 1948, the defendant was walking along a street in the City of Atlanta with one Dorothy Wilson; that Edwin (Eddie) Wilson, operating an automobile truck, drove up and stopped adjacent to the defendant and his companion; that the men drew pistols and began firing on each other; that the defendant was behind Dorothy Wilson when the firing began and she was shot down; that Edwin Wilson then fled a distance of approximately 75 feet, which led around a street corner; that the defendant pursued him and, upon overtaking him, demanded that he drop the pistol, which Eddie Wilson did; that thereupon the defendant demanded why he had shot Dorothy Wilson; that Eddie Wilson made no reply, and the defendant then shot him in the abdomen, which wound caused his death; that the defendant then took Dorothy Wilson to a hospital where she was pronounced dead; and that thereafter police officers appeared on the scene of the shooting and found Edwin Wilson dead with his pistol lying near his right hand beside him.

The evidence also showed that Dorothy Wilson and the deceased were husband and wife; that they had not lived together for some time; that she had brought a divorce petition against him which was pending, and that the defendant had been going with her for some time.

The defendant offered a number of witnesses who testified as to the bad character of the deceased for violence and turbulence, and as to threats made against both the defendant and his wife. The defendant made a statement in his own behalf in which he said that Edwin Wilson fired on Dorothy Wilson and she fell into his arms and slid down to the ground; that Wilson then fired upon the defendant as the latter dropped down in front of the truck; that there was an exchange of gunfire and then Wilson ran around the corner of the street nearby; that Dorothy Wilson then called upon him for help and he ran in the general direction taken by Edwin Wilson because his car was parked in that direction, and was going to get it to take Dorothy Wilson to the hospital; that, as he approached his car, Wilson stepped out and pointed his pistol at the defendant and the latter fired the shot under those circumstances, resulting in the death of Edwin Wilson. There was other evidence that the defendant's car was parked in this location and that he did take Dorothy Wilson to the hospital where he was later arrested.

The jury returned a verdict of guilty and fixed the punishment at from 4 to 6 years. The defendant was sentenced accordingly.

Thereafter, he made a motion for a new trial on the general grounds which was later amended by adding seven special grounds. The exception is to the judgment of the trial court overruling the motion for a new trial as amended. 1. Special ground 5 of the amended motion for a new trial contends that the trial court erred in making a prejudicial and improper remark in the presence of the jury during the progress of the trial. The remark grew out of a colloquy between counsel for the defendant and the court over the admissibility of certain evidence. Counsel for the defendant had just stated that the defense expected to show that Eddie Wilson (the deceased) came to the house where his wife, Dorothy, lived; that the proposed witness, who also lived there, opened the door for him and that as he walked in he had a gun in his pocket and that he was there to kill his wife. Whereupon the court replied, "Well, he did kill her, didn't he, according to your contentions? You are pleading that is a reason why this defendant killed him?"

The defendant contends by this special ground of his amended motion for a new trial that this statement by the court expressed an opinion as to what the evidence was; also, that it stated a contention of the defendant erroneously and that it was prejudicial to the defendant.

No objection was interposed to the statement of the court at the time it was made. No motion for a mistrial was made, or for instructions to the jury that they should disregard the statement, and no request was made for the court to withdraw the statement. The question was raised for the first time in the motion for a new trial, and, as held in Pulliam v. State,196 Ga. 782 (supra), headnotes 6 and 7, and the corresponding divisions of the decision wherein the case of Potter v.State, 117 Ga. 693 (45 S.E. 37), holding to the contrary, was overruled, the defendant cannot abide the chance of a favorable verdict, and, after the return of an adverse verdict, have it set aside because of an improper remark by the trial judge. See also Oglesby v. State, 73 Ga. App. 703, 707 (supra). This assignment of error is without merit.

2. Special ground 6 of the amended motion for a new trial contends that the trial court erred in excluding from the jury evidence of a police officer offered by the defendant as follows: "We got the information at the time we made the investigation that Dorothy Wilson and her husband had separated and had been separated several months."

Evidence to the effect that Eddie Wilson and Dorothy Wilson had separated repeatedly appears in the record. There is evidence as to the time of the separation and also evidence of a pending divorce action. It is well settled that exclusion of evidence, though admissible, at some point in the trial, is not sufficient cause for a new trial, where the excluded evidence is admitted elsewhere. Loeb v. State, 75 Ga. 258 (5). The record discloses that this evidence of separation was undisputed. Assuming, but not deciding, that this evidence was admissible, its exclusion was not harmful error, and this ground of the amended motion for a new trial is without merit.

3. Special ground 7 of the amended motion for a new trial contends that the trial court erred in failing to charge Code § 38-1803, which deals with the subject of impeachment of witnesses. A principal witness for the State was materially contradicted by other testimony, and this charge would have been authorized by the evidence. However, it was not requested, and it is well settled that a charge on impeachment is not required in the absence of a timely request. See many cases cited under Code (Ann.) § 81-1101, catchword "witnesses."

4. Counsel for the defendant in their brief contend that the trial court erred in not granting a new trial on the general grounds because the brief of evidence shows that the State failed to prove the venue. Lack of venue is not specifically raised by a ground of the motion for a new trial, and, therefore, under Code § 6-1609, this contention is without merit, as failure of proof of venue cannot be raised by the general grounds only of a motion for a new trial. See Palmer v. State, 19 Ga. App. 752 (2) (92 S.E. 233).

5. Under one phase of the evidence the jury was authorized to find that after the first exchange of shots between Eddie Wilson and the defendant, during which the former killed his wife, Dorothy Wilson, who at the time was the companion of the latter, the defendant, then in the heat of passion by reason thereof, pursued Eddie Wilson, disarmed him, and killed him.

The evidence therefore supports the verdict of guilty of voluntary manslaughter and the general grounds of the motion for a new trial are without merit.

6. Special grounds 1, 2, 3, and 4 of the amended motion for a new trial amount to no more than a restatement of the general grounds, and are without merit.

The judgment of the trial court overruling the motion for a new trial as amended is without error.

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