Proctor v. StateProctor v. State
The appellant was convicted by a jury in the Superior Court of Dougherty County of the murder of Mack Warren. He was sentenced to serve a life imprisonment term in the State Penitentiary and, after his amended motion for a new trial was overruled in the trial court, he appealed to this court.
The evidence shows that appellant shot and killed Mack Warren with a .22 calibre pistol outside the home of Lucille Martin in Albany, Georgia, on Christmas Day, 1974. At the trial appellant admitted shooting the victim but claimed that he acted in self-defense. Appellant’s version of the homicide was that he was in fear for his own safety because he thought Mack Warren was about to cut him with a butcher knife which he had used to cut Lucille Martin and Christine Sibley during a series of arguments and scuffles the deceased had with them. There was evidence that the deceased was advancing on appellant with the bloody butcher knife but there was also evidence that at the time the fatal shot was fired by appellant the deceased Warren was approximately 15 feet away from appellant and the deceased was
Appellant’s counsel argue forcefully that a new trial should be granted on the general grounds. We do not grant a new trial on the general grounds if there is any evidence to sustain the jury’s verdict. Our review is limited to this inquiry as we do not have the broader discretion possessed by the trial court to grant a new trial. The verdict has the approval of the trial judge and this necessarily means that he considers the verdict was authorized by the evidence. Since a review of the transcript shows that there is competent evidence to support the jury’s verdict, this court will not order a new trial on the general grounds even though it is a close case.
On appeal our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence. See
Strong v. State,
Appellant contends the trial court erred in admitting into evidence certain written statements given by Lucille Martin, Sam Sweeney and the appellant to Detective Yelverton on the day of the shooting. Appellant also enumerates as error the ruling of the trial court which allowed the written statements to go out with the jury during their deliberations. When the state tendered
After the court charged the jury, defense counsel objected to the documents going out with the jury on the grounds that the jury "could reach the conclusion that they were correct in preference to the sworn testimony in the case.” This objection was overruled by the trial judge.
During the trial, the district attorney sought to impeach these witnesses by cross examining them as to some discrepancies between their written statements and their trial testimony. Lucille Martin testified that Mack Warren slapped Christine Sibley before Christine picked up the knife, but her written statement contained no mention of this incident. Lucille Martin also testified that she had tried to take the knife away from Mack Warren, but in her written statement she stated that she attempted to take the knife away from both Christine Sibley and Mack Warren. In addition, Lucille Martin testified that she saw Mack Warren in the bathroom trying to stab Christine Sibley but this fact was not included in her written statement.
The district attorney cross examined appellant in regard to the version of the shooting contained in his written statement that was inconsistent with his testimony at trial. The statement recited, "He then said that he was going to kill all of yaul [sic]. I ran out the side door and around to the front door and came back into the house and Mack was still trying to get to where Christine was in the bathroom. I picked up a pistol out of Lucille’s purse that was hanging on the headboard of the bed and ran back out of the house between two house [sic] and he came out of the house behind me and as I was running away from him I shot once and then I ran between the house and the car and I shot again. He kept coming on me still and I was trying to get into the house but the carpet kept the door shut and I could not get into the house. As I was trying to pull the door shut he was coming and I shot one or two more times at him and then he
During the cross examination of Mr. Sweeney, he identified the written statement he had given to Detective Yelverton, but the district attorney did not cross examine him regarding the contents of the statement. One phrase in the written statement was underlined, however, — "hit Mack in the chest,” (referring to appellant throwing a hammer). Appellant argues that the admission of these written statements into evidence had the effect of emphasizing these written statements over the other testimony adduced at the trial and thus was harmful error.
In
Shedden v. Stiles,
Based on the rationale of
Shedden v. Stiles,
supra, it has been held to be reversible error in a criminal case to allow, over timely objection, certain documents to go out with the jury during their deliberations. See
Strickland v. State,
We believe these decisions are distinguishable from
The question involving appellant’s written statement is more difficult of resolution. While the substance of this statement is also to the effect that the homicide was committed in self-defense, and to that extent was beneficial to appellant’s case, nevertheless, appellant’s versión of the events surrounding the homicide as related in his written statement differs from the version given by appellant and Mr. Sweeney in their testimony at trial.
However, we believe that was no prejudice to appellant’s case as there was no emphasis on an inculpatory version of the events, as in
Shedden v. Stiles,
supra;
Strickland v. State,
supra;
Royals v. State,
supra; and
Walker v. State,
supra. Furthermore, the emphasis, if any, on the prior inconsistent statement over appellant’s testimony at trial, including his explanation of the inconsistency, does not amount to reversible error under the circumstances of this case. The self-defense version of the homicide presented in appellant’s testimony at trial was substantially reflected in the written statements of Miss Martin, and Mr. Sweeney, which went out with the jury, and appellant merely denied that his written statement was an accurate account of what he had- told the police officer. Under
Appellant contends that the trial court erred in allowing these three written statements to go out with the jury in the absence of limiting instructions to the jury that they should be used for impeachment purposes only. No request for such an instruction was made in the trial court and, consequently, these three enumerations of error are without merit.
Slocumb v. State,
During cross examination of a state’s witness, Detective Yelverton, defense counsel attempted to question him regarding the warrant he obtained for appellant’s arrest. Specifically, defense counsel asked Detective Yelverton, "[w]hat charge did you make against the defendant?” Before Detective Yelverton answered, the district attorney objected on the grounds that the offense charged in the warrant was irrelevant to the issues in the trial. The objection was sustained. Later, defense counsel asked Detective Yelverton whether he obtained a warrant for murder against appellant. The state urged the same objection it made previously and this objection also was sustained.
Appellant now contends that his right to a thorough and sifting cross examination of the witness was abridged in violation of Code Ann. § 38-1705. Appellant asserts that Detective Yelverton would have testified that he had obtained a warrant charging appellant with involuntary manslaughter. A copy of this warrant appears in the record.
Although the testimony sought to be elicited from Detective Yelverton may have been relevant to the issues in the trial, the trial court did not commit reversible error in excluding defense counsel’s question. The right to a thorough and sifting cross examination is not abridged where the question propounded calls for a conclusion by the witness as to matters which can be determined only by the jury, such as, whether there was provocation or
While the present case differs from the above cases in that the question here propounded calls
ostensibly
for the statement of a fact, i. e., the crime charged in the warrant, nevertheless, implicit in that response, and the only probative value of that response, is the witness’ opinion at the time he obtained the warrant as to the nature of the appellant’s criminal culpability. This was an ultimate issue for the jury. Defense counsel, moreover, did not seek to elicit the testimony for the purpose of impeaching the witness (see
Smith v. State,
The scope of cross examination rests largely within the discretion of the trial judge (see
Hunsinger v. State,
The appellant also contends the trial court erred in charging the jury on the general definition of a crime as contained in Code Ann. § 26-601, because this charge confused the jury and, in effect, instructed them that they could find the defendant guilty of murder if they believed him to have been criminally negligent.
The jury charge of the trial judge must be viewed as a whole (see
Hilton v. State,
The remaining enumerations of error, argued on behalf of appellant in his original brief, have been considered by this court and are found to be without merit. We find no legal cause for reversal of the trial court’s judgment for any reason urged in this appeal.
Judgment affirmed.