Defendant was indicted for the offense of murder of her husband. The jury returned a verdict of involuntary manslaughter, and defendant was sentenced to three and one-half years in confinement. After defendant’s motion for new trial was filed and denied, defendant appeals. Held:
1. At trial during the state’s questioning of one of its witnesses, a police officer involved in the investigation of the case, the following exchange occurred: “Q. Okay. And did you participate in that preliminary hearing? A. Yes, I did, sir. Q. And do you recall how the defendant pled on that date? A. Yes. Q. And how did she plead? A. Not guilty. Q. Not guilty. In other words, was she represented by an attorney? A. Yes. Q. Now, sir, on that day, was it brought to your attention, by anyone, including the defense attorneys that Donna Neal had been hearing voices? A. No, sir. That wasn’t brought out in preliminary hearing, sir. Q. Was there anything at the preliminary hearing brought out that she had been hearing voices telling her that her husband was going to kill her? A. No.”
Defense counsel objected to this line of questioning and moved for a mistrial and at the very least to have the questions and answers stricken, arguing that the exchange amounted to an impermissible comment upon the defendant’s exercise of her right to remain silent. The trial court overruled both the motion for mistrial and the objection, declining to give curative instructions to the jury.
Defendant now contends that admitting this testimony was
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harmful error under the authority of such cases as
Smith v. State,
The state, in turn, also fails to cite any cases dealing with a silence of a defendant at a preliminary hearing, but instead relies upon cases dealing with the permissibility of comment upon a defendant’s failure to present evidence “to rebut the proof adduced by the state.”
Holmes v. State,
The difference in the results reached by the cases relied upon by the opposing parties in the case sub judice rests in part on the distinction between a comment on a defendant’s silence which is constitutionally protected as opposed to the inference which arises from a failure to present evidence in one’s defense when such would be reasonably expected. The testimony involved here is more in the nature of comment upon the defendant’s failure to present certain evidence
at the preliminary hearing
as opposed to the defendant’s individual exercise of her constitutional right to remain silent. Although this might seem to bring the case sub judice within the ambit of the cases relied upon by the state, the crucial question remains as to whether the silence of the defendant under the circumstances of the preliminary hearing is such as to be of some probative force on the question of whether the defendant’s silence is an expression of agreement with contemporaneous statements of her accusers. “Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question. 3A Wigmore § 1042.” United States v. Hale,
The purpose of a commitment hearing is simply to determine whether there is probable cause (sufficient reason to suspect) to believe the accused guilty of the offense charged, and if so, to bind the accused over for indictment by the grand jury. See Code Ann. § 27-407 (Ga. L. 1980, p. 415);
State v. Middlebrooks,
2. Defense counsel attempted to introduce evidence as to previous instances between the defendant and deceased involving physical violence but was unable to present such evidence before the jury due to the trial court sustaining the state’s objection on the basis that it was improper to introduce evidence as to specific instances of prior conduct by deceased. Defense counsel was permitted to make an offer of proof outside the presence of the jury, submitting the testimony of two of the defendant’s sisters as to the instances involving loud arguments between deceased and defendant and of deceased striking defendant. One sister testified that, ‘T saw him [deceased] beating on her [defendant]. He had her over behind their bed, and he was beating on her like he was beating on another man [and] when he got off of her... she had a few bruises on her face then.” The other sister testified, “... I heard a lot of noise. So it’s when I got up and went to their bedroom, and the door was like open, and that’s when I saw Daniel [deceased] had Donna’s [defendant] head like between her legs and was just beating on her.” These instances as to which the offer of proof was made had occurred some seven years or more prior to the offense with which defendant is charged.
We first review the state’s contention that there was no evidence of an attack being in progress upon the defendant by the deceased husband at the time she shot him. She testified that she had moved his gun because she was frightened he would use it upon her. Defendant testified that upon leaving she told the deceased she wanted to leave and all she wanted him to do was sit still until she left, that she fired at the wall to scare him r nd that he jumped up and ran around to the garage to let the dog out and she was scared of the dog (although there was evidence that the dog was merely a small puppy). Defendant testified that she fired again at the dog and by that time the deceased husband “was on me, and that is when we had a tussle.” *501 Although the evidence as to these events is ambiguous, and defendant testified that she had a loss of memory as to the circumstances surrounding the critical moments, the above noted testimony is sufficient to present an issue as to whether defendant was being attacked by her husband at the time of the shooting and is corroborated in some degree in that one of the neighbors who witnessed some of these events heard a noise that sounded like a firecracker. She then saw two people “fighting” in the driveway. This neighbor testified that “[t]he person [male] in the white shirt was beating up on the other person that was in dark clothing.”
There is no dispute that on a trial for murder evidence of prior difficulties between the defendant and the deceased is admissible in shedding light on the state of feelings between the accused and the deceased. In reviewing earlier cases on this point, we find the state has most commonly relied upon this rule for the purpose of presenting evidence as to defendant’s motive, while defendants have presented such evidence for the purpose of showing the reasonableness of a defendant’s apprehension of danger at the time of the homicide.
The remaining point of difference between the parties in the case sub judice relates to whether evidence involving previous instances between the deceased and the defendant which occurred at a point in time remote to the incident resulting in the homicide may be introduced into evidence under the above mentioned rule. The state, relying upon such cases as
Boling v. State,
3. Code Ann. § 27-1503 (Ga. L. 1977, pp. 1293, 1295) requires that in all criminal trials where an accused contends that he was insane or mentally incompetent at the time the acts charged against him were committed that the trial judge instruct the jury that in case of acquittal on such contention to specify in their verdict that an acquittal on account thereof is because of mental incompetence or insanity at the time of the commission of the act. Due to the contention raised by defendant’s evidence this issue was properly
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charged to the jury in the case sub judice. Code Ann. § 27-1503, supra, also contains other provisions relating to the duties of the judge in those instances where the jury returns a verdict of acquittal because of mental incompetency or insanity at the time of the commission of the act. It has been held that it would be inappropriate to give the entire Code section including these additional provisions in charge to the jury.
Pierce v. State,
During his closing argument to the jury the prosecutor stated in substance that if they returned a verdict of not guilty by reason of insanity that the defendant “is going to walk through that door,” and also subsequently made reference to the collection of some $70,000 in insurance proceeds as to which evidence had been introduced at trial. Defense counsel made no objection under Code § 81-1009 as to this argument but did subsequently predicate an argument that the entire content of Code Ann. § 27-1503, supra, be charged to the jury in view of this allegedly improper argument, and when re-charge was refused defense counsel moved for mistrial based solely on the failure to re-charge, making no reference to the prosecutor’s closing argument as the basis for the motion for mistrial. We decline to accept defense counsel’s methodology in that it seeks to, in substance, address a supposed error in the prosecution’s argument by giving in charge to the jury an otherwise inappropriate charge. The defense counsel’s appropriate method of attack upon the prosecutor’s arguments would have been an objection directed to that argument. As no such objection or motion for mistrial was made predicated upon the purportedly improper argument of the prosecutor any such impropriety in the prosecutor’s argument was waived.
Brown v. State,
4. Defendant enumerates as error the refusal of the trial court to give in charge to the jury a written request to charge on the misdemeanor involuntary manslaughter provisions of Code Ann. § 26-1103 (b) (Ga. L. 1968, pp. 1249,1276). This is referred to generally as the “lawful act-unlawful manner-involuntary manslaughter” charge. See in this connection
Crawford v. State,
In contrast with the above testimony defendant testified as a witness in her own behalf. Her testimony is that when she took her husband’s gun in her hand she thought it contained plastic bullets and she fired at the wall only to scare him. They later wrestled over the gun, and he tried to make her pull it on herself, and when she “twisted” he accidentally “turned the gun on himself.” He then told her he had been wounded and asked for help, but she stated she did not take him to the hospital because she feared he would cause her to have an accident on the way there. Based upon the above, the trial court fully charged the jury on the subject of the death by misfortune or accident and that if the defendant did not intend to shoot the deceased but that the shooting was accidental, “then you would acquit this defendant of any criminal offense.”
We are concerned here with whether or not the above testimony would have required a charge on the misdemeanor involuntary manslaughter provisions of Code Ann. § 26-1103 (b), supra. In
Crawford v. State,
5. Defendant enumerates as error the trial court’s ruling on the Jackson v. Denno (
In a Jackson v. Denno hearing the trial court is the finder of fact and its factual findings must be accepted by this court if there is any evidentiary basis reasonably authorizing such a conclusion. The rule in this state is in favor of the presumption of sanity. See in this regard
Carter v. State,
6. Defendant’s remaining enumeration of error deals with alleged misconduct of jurors during the course of trial which is unlikely to recur on retrial. Therefore, this enumeration of error need not be considered.
Judgment reversed.