Summary
holding that evidence that the fatal stabbing occurred 15 to 20 feet from a location in Washington County was sufficient to prove venue there "in view of the holding in Lee... and Martin... that the Futch case, if in conflict with the rule above stated, would not be followed"
Summary of this case from Worthen v. StateOpinion
34426.
DECIDED JANUARY 20, 1953. REHEARING DENIED FEBRUARY 3, 1953.
Voluntary manslaughter; from Washington Superior Court — Judge Humphrey. November 10, 1952.
J. D. Godfrey, Casey Thigpen, for plaintiff in error.
W. H. Lanier, Solicitor-General, contra.
1. "When all of the evidence introduced on the trial of a criminal case strongly and decidedly tended to show that the offense was committed in the county where the trial was had, and there was no evidence warranting even a bare conjecture that it was committed elsewhere, it will be held that the venue was sufficiently proved." Lee v. State, 176 Ga. 215, 218 ( 167 S.E. 507).
2. Testimony to the effect that, shortly after stabbing the deceased, the defendant advanced with a knife upon another with whom he had no quarrel, stating that he was going to "get him too," is admissible as a part of the res gestae and as tending to show the state of mind of the defendant at the time of the homicide for which he is on trial.
3. Where, as here, the jury would be authorized to believe that the defendant killed in order to repel an assault by another, which assault is not shown to have been made with a weapon likely to produce death, a charge on the law of voluntary manslaughter is proper.
DECIDED JANUARY 20, 1953 — REHEARING DENIED FEBRUARY 3, 1953.
Ralph Brown Jr. was indicted and tried in the Superior Court of Washington County for murder and was convicted of voluntary manslaughter. Rayfield Reeves testified for the State: that he had seen the defendant and Linton White, the deceased, together at a schoolhouse supper; that he was standing about 15 or 20 feet from White when he was cut, but did not see it; that White walked down the road past him bleeding; that he did not know how long this was after he was cut; that about five minutes later he saw the defendant just standing at the side of the road. James Lane testified; that he saw the defendant and White by the schoolhouse; that "they were out there about the road, side of the road, and when he came back down there he was stabbed. I saw him going up to the place and I saw him come back, he was stabbed when he came back. After I saw him stabbed I saw Ralph Brown, Jr,; he was up there about the road. . . What caused me to pay attention to Ralph Brown Jr. was that he started on me with a knife, Linton White had passed by me at that time, I was going to the car. . . I had had no trouble with Ralph Brown Jr. that night before then, and I hadn't said nothing to him and he hadn't said nothing to me only he said he was going to get me too. . . I don't know how close Ralph Brown was to me when he cut Linton White, I didn't see him. After he cut him, I was there by the car and when he started on me with a knife I shot him." Wiley Watts testified: "I came there after they [defendant and White] had trouble. I did not see Linton White after I came there. . . When I drove up I saw James Lane backing up and then Ralph Brown was there with a knife in his hand." There was evidence that the deceased died of a stab wound in his neck, which was the kind of wound a knife would make. The defendant made the following statement: "He just come up to me and says `Look like you are trying to take my girl,' and then he started to fighting, he knocked me down twice and then I opened my knife and that's when I cut him. He knocked me down with a pair of knucks. That was all." A pair of knucks were found in the clothing of the deceased.
Upon conviction the defendant filed a motion for a new trial on the general grounds, which was amended by the addition of certain special grounds. The overruling of this motion is assigned as error.
1. In the first ground of the amended motion for new trial, error is assigned on the contention that the venue of the offense was not proven. The witness Reeves testified that he was about 15 or 20 feet from White when he was cut, that White then walked past him. Reeves then stated: "That place where I saw Linton White and saw him bloody, that is in Washington County, Georgia." There was no other evidence as to venue, and nothing to raise a conjecture that the killing did not occur in Washington County. Slight evidence as to venue is held to be sufficient when there is nothing to warrant a contrary inference. Climer v. State, 204 Ga. 776 ( 51 S.E.2d 802); Lee v. State, 176 Ga. 215 ( 167 S.E. 507). The ruling in Futch v. State, 90 Ga. 472 (2) ( 16 S.E. 102), to the effect that proof that the homicide was committed at a point 25 or 30 steps (75 to 90 feet) from a house, together with proof that the house was within a certain county, did not sufficiently establish venue, is not controlling authority for holding that venue was not proved in the case here, where the distance involved was only 15 or 20 feet, in view of the holding in Lee v. State, supra, and Martin v. State, 193 Ga. 824 (4) ( 20 S.E.2d 66), that the Futch case, if in conflict with the rule above stated, would not be followed. This ground is without merit.
2. In the second and third grounds of the amended motion, error is assigned on the admission of testimony above set out, to the effect that the defendant, after stabbing White, made an assault with a knife upon the witness Lane, on the ground that such testimony was prejudicial to the defendant and wholly disconnected from the offense for which he was on trial.
Evidence of the commission of an offense which is wholly independent from that for which the defendant is on trial, and which does not tend to prove his guilt of the crime charged, is inadmissible. Bacon v. State, 209 Ga. 261 ( 71 S.E.2d 615). The true test is whether there is some logical connection between the two crimes, in such manner that proof of the one is a probative circumstance tending to show to other. Evidence that the defendant, after committing the homicide, drove his car to another point where he committed two additional homicides was held in Swain v. State, 162 Ga. 777 (2) ( 135 S.E. 187), admissible both to prove res gestae and to show motive, although the defendant made no denial of the homicide for which he was on trial. See also Glover v. State, 137 Ga. 82 (1) ( 72 S.E. 926); James v. State, 30 Ga. App. 36(1) (116 S.E. 663). While no witness actually saw the stabbing, for which reason there is no testimony as to the exact lapse of time between that and the subsequent assault, it appears from the testimony as a whole that the two occurrences were very close in point of time. The men were seen leaving together; White was seen returning followed by Brown not more than five minutes thereafter; Lane saw White walking away (in search of a doctor according to Reeves' testimony), and then saw the defendant approaching him with a knife, stating he was going to "get" him too. Such testimony has probative value as tending to show the violence of passion or malice of the defendant (essential ingredients of the crimes of manslaughter and murder respectively), which had not subsided at the time of the second assault, and as thus throwing light on his state of mind, and in consequence his intent, at the time of the homicide. It is apparent that, whatever ever interval of time elapsed between the two events, it was not sufficient for the defendant to return to a normal state of mind and give thought to the consequences of his actions; and, this being so, it constituted a part of the res gestae. The admission of this testimony was without error.
3. Error is assigned in special ground four on the court's charge on the subject of voluntary manslaughter, it being contended that such charge was without evidence to support it. In Mixon v. State, 7 Ga. App. 805 (4) ( 68 S.E. 315), it was held: "Wherever a homicide is neither justifiable nor malicious, it is manslaughter; and, if intentional, is voluntary manslaughter." The defendant stated that he stabbed White after White had made an assault on him with a pair of knucks. An assault so made cannot be said, as a matter of law, to be an assault with a weapon likely to produce death, which would justify the defendant in killing his assailant; and for this reason the law of voluntary manslaughter is necessarily involved and should be given in charge, it being further contended that the homicide occurred in an effort to repel the same. See Tanner v. State, 145 Ga. 71 (1) ( 88 S.E. 554). The charge on this subject was without error.
4. The verdict is supported by the evidence and, no error of law appearing, will not be disturbed by this court.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.