40 S.E.2d 544 | Ga. | 1946
1. The evidence authorized the verdict.
2. Where a witness testified that a handbag in question was similar to one owned by him, his further testimony that, though he had not looked in the bag, he could tell from its appearance that it contained something, and that it would hold four or five uniforms, such evidence was not subject to the objection that it was a conclusion.
3. Where a homicide was shown to have been committed with a pistol, and the accused was identified as the assassin, testimony of an employee of a prison that four days before the homicide the accused, together with others, escaped from prison, took certain guns and a pistol away, and *514 was not in prison on the date of the homicide, was not subject to the objection that it placed the character of the accused in evidence.
(a) Nor was it subject to the objection that the records of the prison would be the highest and best evidence of whether or not the accused was in prison on the day of the homicide.
4. Testimony of a prison guard that the accused was not in prison during a specified period of time was not subject to the objection that the prison records would be the highest and best evidence.
5. Evidence that a homicide occurred in an automobile off the pavement on a highway between designated towns, coupled with testimony that all points on the highway between the designated points are in the county in which the accused was tried, is sufficient to establish the venue.
The facts disclose that the deceased, together with Hyle H. Humphries, both of whom were in the armed service, were returning from Tennessee to the convalescent hospital at Daytona Beach, Florida. They were traveling in an automobile. About 1:30 a. m. Humphries, who was driving the car, became too sleepy to drive safely, and stopped about 8 miles south of Louisville, Jefferson County, Georgia, between Louisville and Wadley on Federal Highway No. 1 at the junction of a small side road, and "stopped [the] . . automobile off of the pavement on the highway." They locked the doors of the car, rolled up the glass, and sought to rest or sleep for a few minutes. Less than five minutes thereafter two men approached the car from the front, walked by the left side of the car to the back of the car, and around to the right side of the car. Humphries started the motor of his car, and one of the men jumped on the running board and hit the glass with something, then fired two shots into the car with a pistol, one of the shots striking Rowland, from which he died about thirty minutes later. The two men then got into the car with Humphries and Rowland. After requiring Humphries to drive away, one of the men then got into the driver's seat and drove into Louisville. Here they stopped in front of a filling station, put Rowland and Humphries out of the car, robbed Humphries of $24 in money, and drove off in the automobile at about 2 a. m. An alarm was given and the automobile was found about an hour later with the left front tire torn completely up. *515
This crime occurred on Monday, August 20, 1945, at about 1:30 a. m. The accused was a prisoner at Tattnall Prison and along with others escaped on August 16, 1945, and was captured and returned from the State of Texas in April, 1946.
Humphries identified the accused as being the person who shot Rowland, who compelled him to return in the car to Louisville, and who robbed him of $24. Two other witnesses identified the accused as being one of two men seen near Wrens, which is near Louisville, on Monday night.
There was other evidence in the nature of incriminatory admissions made after his arrest.
The accused placed on the stand a witness, who testified that she saw him in Chattanooga on August 19 at between 6 and 7 p. m.; and in his statement he denied committing the crime, relating why he was serving a life sentence for murder, many of his experiences in prison, and the manner of his escape along with several other prisoners. 1. The evidence was sufficient to authorize the verdict.
2. There was evidence that, when the accused and his companion drove off in the car, they carried the handbags of both the deceased and Humphries, and that when the car was found about an hour later the handbag of the deceased was gone. Humphries testified that both handbags were similar, and that, though he had not looked in the handbag of the deceased, he could tell there was something in it, and that you could put four or five uniforms in that kind of a handbag. An objection to this evidence upon the ground of its being a conclusion of the witness was without merit. Code, § 38-1708.
3. An employee at Tattnall Prison was permitted to testify that the accused had escaped from the prison on August 16, and was not there on August 20, the date of the homicide, and that at the time of the escape three shotguns and a pistol were carried away.
Such evidence was not subject to the objection that it placed the character of the accused in evidence. As illustrating a motive, scheme, or plan for this homicide, it was permissible for the State *516
to show that three or four days prior thereto the accused had escaped from the penitentiary along with others and that guns and a pistol had been taken therefrom. The accused having left the prison, and a pistol having been taken therefrom at that time, this was relevant evidence to furnish a motive for the homicide, as illustrating a plan or scheme to further facilitate the escape by procuring an automobile in this manner. To admit evidence of such conduct, is not in violation of the Code, § 38-202.Bradberry v. State,
(a) Nor was it subject to the objection that the records of the prison would be the highest and best evidence of whether or not the accused was in prison on the day of the homicide. "It is not contrary to the best-evidence rule that oral testimony of a fact in issue may be primary evidence of the fact, although there is also written evidence of the same fact, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of the independent fact itself, as to which the writing is merely collateral or incidental." Hicks
v. Hicks,
4. Nor was the testimony of a prison guard, that the accused was not in prison on August 29, when the witness began work there, and that the first time the witness saw the accused was when he was brought in from his escape, subject to the objection that the prison records would be the highest and best evidence.Hicks v. Hicks, supra.
5. It was insisted that the venue of this crime was not proved. Humphries testified: "I stopped my automobile off of the pavement on the highway we were traveling [between Louisville and Wadley], and on the right-hand side of the paved highway." James Hubbard testified: "All points on the highway between Wadley and Louisville are in Jefferson County." This was sufficient evidence to establish the venue. Dickerson v. State,
Judgment affirmed. All the Justices concur. *517
