Opinion
23183, 23184.
ARGUED NOVEMBER 8, 1965.
DECIDED JANUARY 7, 1966. REHEARING DENIED JANUARY 18, 1966.
Murder. Elbert Superior Court. Before Judge Williford.
William A. Orr, for appellant.
Clete D. Johnson, Solicitor General, Arthur K. Bolton, Attorney General, Rubye G. Jackson, Assistant Attorney General, for appellee.
1. Since the enumeration of errors was not timely in case No. 23183 the appeal must be dismissed.
2. A correct instruction to the jury on the law of manslaughter, even if unauthorized by evidence, is no cause for new trial after conviction for murder.
3. Absent a written request, it is not error for the trial judge to fail to charge the law of a theory of the case presented solely by the defendant's unsworn statement.
4. Where defendant's counsel stipulated that a certain issue was not germane to the case it was not error to omit charging on that subject.
5. The portion of the charge concerning the jury's right to recommend mercy, when considered as a whole, was not erroneous.
6. Where competent testimony as to the defendant's admissions was admitted into evidence, it was not error to charge the law applicable to that issue.
7. A statement by the deceased to a witness, made just moments before the fatal shooting and within a short distance of the accused, was admissible as part of the res gestae.
8. The admission of a certain pistol into evidence was not harmful error.
9. The motion for continuance was addressed to the sound discretion of the trial judge, which will not be disturbed absent abuse.
10. The defendant was not deprived of his right to counsel.
11. The elements of mutual combat were not present in the case and the trial judge did not err in failing to charge the law relative to that issue.
12. The general grounds of the amended motion for new trial are without merit.
ARGUED NOVEMBER 8, 1965 — DECIDED JANUARY 7, 1966 — REHEARING DENIED JANUARY 18, 1966.
Curtis Brawner was indicted by the grand jury of Elbert County for the murder of R. R. McLanahan. The defendant plead not guilty to the indictment, was tried and the jury returned a verdict of guilty without a recommendation of mercy. The defendant moved for a new trial on the general grounds and subsequently amended by adding eleven special grounds. The motion for new trial as amended was overruled by the trial judge.
The record discloses that the homicide occurred in the City of Elberton on February 6, 1965, at approximately 4:30 p. m. at a coal yard which was operated by the deceased, R. R. McLanahan. From the evidence, adduced entirely from testimony of witnesses for the State, two versions of what transpired were related.
The first account, as testified to by James Bobo and substantiated in part by his wife, was as follows: Bobo and his wife arrived at the coal yard in a pickup truck at about 4:30 on the afternoon of the homicide; that when they got to the coal yard there were several Negroes already there; that the automobile in which the Negroes already there; that the automobile in which the Negroes were traveling had backed up into the coal yard and was facing a street to the rear of an adjoining filling station. Bobo backed his truck into the coal yard and as soon as he got out of the truck he heard cursing between the deceased and the defendant, and immediately thereafter, the defendant fired a pistol directly at Bobo. Bobo then turned and fell into the floor of his truck, grabbed a lug wrench, or "four prong" tire tool, and as he straightened up out of the truck the defendant turned toward the deceased and shot "three or four times." Bobo heard the deceased say, "I will call the law." The defendant quit shooting, turned with his back to Bobo and said something to the other Negroes; then Bobo ran to where the defendant was standing and "lowered the boom on him with the lug wrench." Bobo then ran to overtake the deceased who was proceeding towards the neighboring service station. Bobo testified that he caught up with the deceased before he reached the service station; that the deceased had been shot under the left armpit; that he held him as the deceased slumped to the ground. On cross examination, Bobo admitted he had been drinking on the afternoon of the homicide.
Mrs. Bobo testified that when her husband got out of the truck she heard some cursing to the rear of the truck but could not say who was cursing or the exact language used; that she heard one sound that seemed to her like a shot; that her husband reached into the floor of the truck and got a lug wrench, slammed the door and then she heard several shots. She also testified, over objection, that the deceased said in her presence: "Call the law."
The other version of the encounter as related by the defendant's companions in the automobile was: that they picked up the defendant on the way to the coal yard; that upon arriving the defendant got out of the car and was standing with his back to the approaching pickup truck of Bobo, which truck was backing into the yard; that the deceased told the defendant to get out of the way, profane language was exchanged, the parties "throwed up their fists," and the deceased said he was going to call the law and started in the direction of the service station; that two of the witnesses attempted to get the defendant back into the automobile when Bobo approached from the rear and struck the defendant over the head with a lug wrench; that the defendant whirled around and around, staggering with blood "skeeting" from his head, and then commenced shooting, firing three or four shots in the direction of Bobo and the deceased.
The defendant in his unsworn statement related still another account of what happened: that after receiving a blow on the head from the rear, he was staggering and dazed when he pulled the gun out of his pocket and fired. He stated he had no intention of killing anyone, but felt that whoever was after him would attempt to hit him again and he fired the gun in an effort to empty the bullets. He further related that at no time did he see the deceased and did not learn until later the deceased had been shot.
There was evidence that on the day following the homicide the defendant came to the sheriff's office, surrendered himself and a few minutes later was transported from the jail in Elberton to Toccoa in Stephens County. Over objection by counsel for the defendant, testimony was given as to an alleged confession made by the defendant concerning the homicide. The written statement as related by the witnesses was to the effect that the defendant had gotten into an argument with two men and had turned to get back into the car when the smaller of the two hit him over the head with a lug wrench. At that time he began to shoot. The written confession was later withdrawn from the evidence on the motion of the solicitor general.
The defendant filed both a notice of appeal and a bill of exceptions to the order overruling the motion for new trial.
1. In case No. 23183 in which a notice of appeal was filed the enumeration of errors was not timely, being filed 19 days after the case was docketed in this court. Hence, the appeal must be dismissed. We thus pass upon the case as presented by the bill of exceptions. This necessitates a consideration of the grounds of the motion for new trial.
2. Grounds 1 and 2 complain of the trial judge's charges on voluntary and involuntary manslaughter. It is contended that such charges were not applicable to the facts of the case. It is well settled that: "where a person was on trial under an indictment for murder, a correct charge on the law of manslaughter, even though not authorized by the evidence, would not be cause for the grant of a new trial, where the defendant was convicted of the higher offense of murder." Rucker v. State, 135 Ga. 391 (1) ( 69 S.E. 541); Crews v. State, 184 Ga. 443 (1) ( 191 S.E. 427).
Moreover, the facts do show that the charges on manslaughter were applicable. In fact, counsel for the accused stated: "It is our contention that there is involved in the case, and it being a question for the jury to decide, either voluntary manslaughter or involuntary manslaughter in the commission of an unlawful act."
The grounds are without merit.
3. Ground 3 complains that the trial judge, without request, failed to charge on "misfortune or accident." It is urged that such issue was raised by the accused's unsworn statement.
"In the absence of a written request so to do, it is not error for the trial judge to fail to charge the law of a theory of the case presented solely by the prisoner's statement." Robinson v. State, 114 Ga. 56 (4) ( 39 S.E. 862); Holleman v. State, 171 Ga. 200 (3) ( 154 S.E. 906).
This ground is without merit.
4. Ground 4 complains that the trial judge should have charged, without request, the law of justifiable homicide. Regardless of whether this issue was raised by the evidence, the record shows that counsel for the accused gave the following answers to questions propounded by the trial judge: "Q. Is it your contention, Mr. Orr, that justifiable homicide is not involved in this case? A. Yes sir. Q. Will you stipulate that fact? A. Yes sir..."
No merit appears in this ground. Coleman v. State, 141 Ga. 737 (4) ( 82 S.E. 227); Bennett v. Bennett, 210 Ga. 721 (2) ( 82 S.E.2d 653); Weaver v. State, 68 Ga. App. 51 ( 21 S.E.2d 920).
5. Ground 5 takes exception to the following charge: "If you find the defendant guilty and recommend him to the mercy of the court, you indicate such recommendation in your verdict. You may make a recommendation of mercy to the court with or without reason. You may do that just as a matter of grace on your part or matter of forgiveness on your part. You don't have to have any reason. If you do have a reason it is all right and if you don't have a reason you can do it anyway. In such event the form of your verdict would be, `We, the jury, find the defendant, Curtis Brawner, guilty and recommend him to the mercy of the court.'" Counsel for the defendant urges that the charge was confusing and misleading to the jury; that it amounted to an expression of opinion by the judge; that it confined the jury to grace or forgiveness in determining whether they would grant mercy; that it was incorrect as an abstract principle of law.
While this court has held that the jury has unlimited power to recommend mercy and that it is reversible error for the judge to require the jury to consider anything in reaching its conclusion as to whether or not it will recommend mercy ( Wyatt v. State, 220 Ga. 867 ( 142 S.E.2d 810)), and cases therein cited, an entirely different situation exists in this case. Here, the judge prefaced his instructions by charging, "You may make a recommendation of mercy to the court with or without reason." Then, after charging as to "grace or forgiveness" the judge further explained that to the jury: "You don't have to have any reason [to recommend mercy]. If you do have a reason it is all right and if you don't have a reason you can do it anyway." Thus, the charge as a whole did not limit the jury in any manner, but correctly left it solely for it to determine whether to grant or withhold mercy. Furthermore, the language used would be beneficial to the defendant rather than harmful.
The ground is without merit.
6. In ground 6 of the amended motion complaint made as to the trial court's charge on admissions and incriminatory statements. It is argued that since the written confession was withdrawn by the solicitor general and such evidence constituted the highest and best evidence of any confession or admission, the oral testimony was a nullity; hence, there was no evidence to support the charge.
We can not agree with this contention; for, the parol testimony, especially since it was not objected to or any motion made to strike it, was not a nullity but was competent. With such evidence in the case as to the defendant's admissions, it was not error to charge the law applicable to that issue.
7. Ground 7 is that the court erred in admitting evidence as to a statement made by the deceased to a witness: "Call the law." It is contended that such statement was hearsay.
The record shows that the deceased spoke to the witness just moments before the fatal shooting and within a short distance of the accused. It was admissible as part of the res gestae. Thomas v. State, 67 Ga. 460 (3); Clarke v. State, 221 Ga. 206 ( 144 S.E.2d 90).
8. The eighth ground complains that a pistol was admitted into evidence over the defendant's objection that it was not sufficiently identified as the weapon used by the defendant on the day of the homicide.
The evidence, which we think is unnecessary to state in detail, did not definitely identify the weapon as the one in question. However, the defendant admitted he fired the fatal shots from a pistol of the same caliber and since it appears that the killing was with a similar, if not identical, weapon we can not perceive that the introduction of the pistol was, if error, such hurtful error as would require the grant of a new trial.
9. Ground 9 complains of the denial of the defendant's motion for continuance based on the grounds that appointed counsel did not have time to prepare the case; that neither a copy of the indictment nor a list of witnesses was furnished to him. Counsel also complains that the fact the jury list was not given to him until 3 days prior to the trial deprived the defendant of his rights.
The record shows that defendant's attorney made no demand for copy of the indictment; that he was allowed to interview the witnesses and that the jury list had been recently revised. Motions for continuance predicated on the time counsel has for preparation of the case are within the sound discretion of the trial judge, which will not be interfered with unless abused. Kell v. State, 188 Ga. 670 (1) ( 4 S.E.2d 596); Porch v. State, 207 Ga. 645 (1) ( 63 S.E.2d 902).
10. Ground 10 asserts that the admission of the defendant's confession was error because at the time it was made he had no counsel. The record shows that the defendant was advised of his right to counsel and declined to avail himself of that right. The defendant was 23 years old, a high school graduate and, apparently, of normal mentality. Under such circumstances, it was not error to admit the confession into evidence.
11. In ground 11 it is contended that the court erred in failing to charge, without request, on mutual combat, because this was a material issue raised by the evidence.
The evidence reveals no semblance of the requisites of mutual combat; hence, it was not error to omit that issue from the instructions to the jury. Roberts v. State, 189 Ga. 36, 44 (3) ( 5 S.E.2d 340); Porter v. State, 213 Ga. 325, 326 (1) ( 99 S.E.2d 110).
12. The evidence being in conflict, the general grounds are without merit.
Judgment affirmed in case No. 23184. All the Justices concur, except Quillian, J., who dissents.
Under authority of Johnson v. State, 58 Ga. 491, Hill v. State, 72 Ga. 131, Cohen v. State, 116 Ga. 573, 576 ( 42 S.E. 781), and Jennings v. State, 212 Ga. 58, 59 ( 90 S.E.2d 401), I am compelled to dissent because in the present case the instruction that the jury might recommend mercy as a matter of forgiveness was an expression of opinion that the defendant was guilty.
Accordingly, I dissent from Division 5 of the opinion and the judgment of affirmance in case No. 23184.