Opinion
32259.
DECIDED FEBRUARY 3, 1949. REHEARING DENIED MARCH 24, 1949.
Assault with intent to murder; from Richmond Superior Court — Judge G. C. Anderson. September 16, 1948. (Application to Supreme Court for certiorari.)
Eugene M. Kerr, for plaintiff in error.
George Hains, Solicitor-General, contra.
1. The evidence authorized the verdict.
2. The admissibility of the evidence objected to was properly determined by the court, and the weight which might be given to such evidence was properly left to the jury, where the arresting officer was allowed to testify as to what the defendant's wife had said in the defendant's presence regarding the occurrence of the defendant's shooting his stepdaughter, on the question of whether or not the defendant's silence at that time constituted an admission of guilt.
3. Special ground 2 of the amended motion for a new trial, regarding the alleged limitation by the court of the number of character witnesses which the defendant might introduce, is so incomplete as to preclude its consideration by this court.
4. Where a matter is collateral to the real issues and comes in question and proof of it is admissible, it may be shown by parol testimony, and need not be established by documentary evidence.
5. The associate counsel for the State's remarks in his concluding argument to the jury, that "the shooting was cold-blooded and that the defendant is a cold-blooded criminal," were, under the evidence in this case, within the legitimate limits of argument and do not constitute grounds for a mistrial.
6. The criticized excerpts from the charge to the jury, when considered in connection with the entire charge, disclose no reversible error.
DECIDED FEBRUARY 3, 1949. REHEARING DENIED MARCH 24, 1949.
Curtis A. Byrd was indicted, in the Superior Court of Richmond County, for assault with intent to murder, found guilty, and sentenced to from four to eight years in the penitentiary.
The material portions of the evidence follow. Miss Myrtle Whittaker testified on behalf of the State: " . . I was shot in Richmond County, Georgia, on Sunday, February 22, 1948, by my stepfather, Curtis A. Byrd. I live with my stepfather and mother and little niece at 1579 Fifteenth Street, Augusta, Georgia, at which place the shooting took place. . . On February 22nd, I got up as usual about 7:30, made up my bed, put on my clothes and went into the kitchen for breakfast. I intended to go to Sunday School, but my mother was not feeling well so I stayed home and helped her prepare dinner. About 8 o'clock my mother called the defendant and he got up and ate breakfast and talked as usual. After eating he went back to bed. About noon he woke up again of his own accord, got up fussing and fuming. He had a habit, if anyone made him mad at work, he took spite out on us. When he got up he came into the kitchen and asked my mother if dinner was ready. He was on a diet. He ate his dinner and kept on fussing at her. I said nothing to him for it was not my business. After a while he said, `I am getting out of here. I am tired of staying here. I don't live like other men. It takes all I can rake and scrape to go on and I am tired of it and I am going to get out of here.' My mother said, `What is going to happen to me?' He said that he was going to retire on his retirement from the city. Then my mother said, `I lived here with you twenty-two years and have given the best part of my life. Who is going to take care of me?' He replied, `I don't give a damn. Your children can take care of you, but I am getting out of here. I furnish an automobile for them to go and get groceries and I pay for gas and oil in it.' This kept on for a while and about one o'clock he calmed down and everything was perfect. I had some cold cream on my face and went into the kitchen to wash my hands. About that time the defendant asked my mother if she had fed the chickens and she replied, `No.' He went into the yard and fed them and came back in the house. I was standing in front of the sink and it wasn't a second before he walked through the room and came to the door of the kitchen, about twenty feet from me and said, `Mamie, Mamie.' When I looked up he had the gun pointed at me and by the time I looked at him he shot me and I started falling to the floor. He shot me under the right breast. He broke my ribs and I have an incision about a foot long from the operation. He fired once and I did not realize what had happened at first. It seemed like something began to go in front of me and I began falling backwards, but I didn't go unconscious. Then he turned the gun on my mother and started unbreaching it. She ran to him and took the barrel of the gun and held it towards the ceiling. She kept wrestling with him and he kept pushing her out of the door, and I don't know what happened after they got outside, for I was not able to get off the floor. At the time of the shooting I was about to wash my hands and had nothing in either hand. I was unarmed and unaware. He had his gun at his shoulder aimed at me, and at the time he shot me he was about twenty feet away from me, standing in the door which leads from the bedroom into the kitchen. There was a table nearby but not between me and him. There was nothing between us, at the time the shot was fired he was as far as you to me from that table. I had fallen down on the floor and against the wall behind me. I crumpled down on the floor and caught my side, it was hurting and bleeding. I was not able to get up to assist my mother, for she and Byrd had struggled out and into the back yard. I did not know what happened outside. . ."
On cross-examination, she testified: "I remember everything that happened pretty vividly, even after the shooting. I do not think that Mr. Byrd is nervous, but he is like a child and when he takes a notion to have something he throws a fit and gets it. He never said anything about committing suicide and I do not know whether or not he was trying to at that time. He has been married to my mother for twenty-two years. I am thirty years old. They have gotten along fairly well, but there have been times when he took a notion he was not satisfied staying there and that he didn't have enough money to spend on outside activities; that he wanted to live; and several times he has taken his clothes and left. This time he wanted to leave but wanted me to bear all of the home expenses. I believe he got a divorce from my mother once but they were remarried. They have separated on other occasions but not recently. One time they separated for three weeks and he would come in front of the gate and if [he] could not get in would go to relatives to get my mother to come over and talk to him for he wanted to come back home. He was not satisfied. Mr. Byrd was not too good a husband. He supported my mother with the help of her children. He did not support me, for I paid board shortly after I began teaching school, until I was shot. He did not take care of me while I was going to school. I had a brother who worked for Richmond County and paid for all of my clothes and for me to go to school. He did not treat me like a father all of the time and occasionally has beaten my mother; and has even slapped me since I have been grown. I may have been interfering in the family arguments, but you probably would too if he said the things to you that he did to me. The only thing he said before he shot was, `Mamie, Mamie,' and when I looked he shot me. Mamie is the name of my mother."
James Parker testified on behalf of the State: " . . I live next door to the Byrds. . . I was sitting in my house, reading the newspaper . . when Myrtle Whittaker was shot. I heard the shot and somebody screamed and some loud talking and I could not see anything so I came out the front door. When I got to the front door I seen my sister and Mr. Byrd struggling with the gun on the back porch and she was screaming for help, so I jumped off the porch and ran over as fast as I could. He had the gun under his arm and she had the barrel trying to hold it off, and he dragged her around behind the house. When I got to them and grabbed the gun and told her to turn loose, she turned loose, and I told him to turn loose and he said, `No, no.' He held on and spun me around, and when I got back on the ground somehow, I snatched him backward and snatched the gun out of his hand. Mrs. Byrd said he had shot Myrtle and I went in the house and found Myrtle on the floor at the sink. I unbreached the gun and took one unloaded shell out of it and went in the room and threw the gun under the bed. Myrtle said she was shot in the stomach. Then I saw Byrd coming back in the kitchen door. He rushed on into the other room and I rushed right on in behind him. He reached in the trunk and I grabbed him by the coattail and slung him backward. When I slung him around I could see a razor and he cut two or three times at his throat, and I pulled him on out to the back door and he walked about ten feet from the back door in the yard and cut his wrists and other parts of his body. He then dropped the razor. I put it in my pocket. It was a straight razor. When I first saw the defendant and Mrs. Byrd, they were on the back porch and he had the stock of the gun and she was holding the barrel. He was jerking her backwards trying to take the gun away from her and she was holding the barrel. I asked him, `What is the matter with you? Have you gone crazy?' He replied, `No, no.' and said something about getting out and about that time my sister turned the gun loose, but he braced himself and refused to let go, and . . I finally snatched it out of his hand."
L. H. Waller testified for the State: "I am a police officer and was called to the Byrd home at 11:57 a. m. on February 22nd. Upon arriving I found Myrtle Whittaker in the back seat of an automobile, but before they could take her to the hospital an ambulance arrived and took her. A few minutes later I found Mr. Byrd about a hundred feet from the house with both wrists and throat slashed with a razor. Mr. Parker had the razor in his pocket. We recovered a shotgun and one empty shell. . . I arrested Mr. Byrd and sent him to the hospital. I asked him why he did it, and the only explanation we got out of him, he said he was going to settle all his troubles once and for all. He did not give any explanation about what happened, but Mrs. Byrd did. Mr. Byrd was conscious and present at this time. . . Mr. Byrd stated that he was going to end all of his troubles. Mrs. Byrd said he got out of his bed and picked up this 4.10 shotgun. . . She stated he picked up this 4.10 shotgun and stepped to the kitchen door and fired one time at Miss Whittaker, unloaded the gun, and when he started to load it again she (Mrs. Byrd) grabbed it and they struggled into the back yard where Mr. Parker took the gun away from him. . ." On cross-examination, he testified: "The entire description I have given of the shooting and struggling came from Mrs. Byrd in the presence of Mr. Byrd. I was holding Mr. Byrd at the time and had the blood cut off in his arm. I couldn't tell whether he was in misery or not, he did not say."
At this point counsel for the defendant introduced three character witnesses, and was introducing another when the court suggested that he introduce only three more, though counsel stated that he had some fifteen more to introduce. Counsel for the defendant then introduced the defendant's brother-in-law, Paul A. Connell, who testified that he had found a certain note in the pocket of Mr. Byrd's clothing when the nurse at the hospital had turned Mr. Byrd's clothing over to him. Mrs. Innis Newman, sister of the defendant, was then introduced by the defendant, and after testifying to the defendant's good character identified the handwriting on the note in question as that of the defendant. The defendant then made his statement to the jury in which he related at some length the difficulties and irritations of his married life and stated: "Well, I ain't got a thing against my stepdaughter. Just a pure accident, and I wouldn't harm a hair on her head. . . Well, that morning I got home there and went to bed and got up there and ate my breakfast and went back there and when I knowed it Marion Whittaker he was standing up over my bed and said, `You son of a bitch, you, I'm going to come down here and stomp the living hell out of you, you son of a bitch, you.' He said, `I better not hear of you hitting my mother," which well, I didn't hit her and didn't expect to hit her. I think a whole lot of her and do yet. After he left I went in there and put my arm around my wife's neck. She said: `I don't want nothing to do with you. Take your hands off me. I don't want a thing to do with you.' I went back in there and I wrote that note and got my gun and started out there and as I started out I struck the corner of the table as I was going out in the yard. I decided I would go ahead and kill myself and get out of it. No way of living like I was, my wife in one room and I in the other." Marion Whittaker testified for the State that he knew of three peace warrants they had issued against Mr. Byrd for attacking his sister (Myrtle). Myrtle Whittaker returned to the stand and stated that the gun did not strike the table.
The defendant made a motion for a new trial, on the usual general grounds and six special grounds, which was overruled and he excepted.
1. The evidence authorized the verdict.
2. The testimony, objected to in special ground 1, given by the arresting officer was: "He [the defendant] did not give any explanation about what happened, but Mrs. Byrd [wife of the defendant] did. Mr. Byrd was conscious and present at this time. Mr. Byrd stated that he was going to end all his troubles. Mrs. Byrd said he got out of his bed and picked up this 4.10 shotgun. She stated he picked up this 4.10 shotgun and stepped to the kitchen door and fired one time at Miss Whittaker, unloaded the gun, and when he started to load it again she (Mrs. Byrd) grabbed it and they struggled into the backyard where Mr. Parker took the gun away from him." The objection to this testimony, as stated in the brief of the defendant, was that, if the statement was made in the presence of the defendant, it did not require any denial or affirmation at the time it was made. Under the evidence it was a question for the jury whether the defendant in fact heard the statement, Knight v. State, 114 Ga. 48 (1, 2) ( 39 S.E. 928, 88 Am. St. R. 17); and, if the jury found under the facts of this case that he did hear it, it would be a further question for the jury to determine whether under the circumstances an answer or denial or other conduct was required, and also whether the defendant's acquiescence or silence under the circumstances amounted to an admission. The admissibility of the evidence was properly determined by the court and the weight which might be given to such evidence was properly left to the jury. Perry v. State, 78 Ga. App. 273 ( 50 S.E.2d 709).
3. After the defendant had introduced three character witnesses, the record shows that the following took place: "Court: `How many more character witnesses have you?' Mr. Kerr: `I have about fifteen.' Court: `Have you got any law that you can use more than three?' Mr. Kerr: `No sir. I just thought I could throw the preponderance of the evidence in the court.' Court: `Suppose you just use two or three of them, two or three more.' State: `If that is the law, I am glad to hear it. You are telling me something and I hope the court invokes it.'" The defendant contends that this limited the number of character witnesses he could introduce to six, and that this was reversible error. The remark of the court, "Suppose you use two or three of them, two or three more," was, it seems to us, in the nature of a suggestion that six character witnesses might be sufficient to establish the fact in question rather than in the nature of a definite ruling refusing to allow the defendant the use of such witnesses, and we are strengthened in this opinion for, after the defendant had introduced such six character witnesses and had introduced another witness, Connell, to show that he had found a certain note in the defendant's pocket, the defendant introduced Mrs. Newman, who in response to a question asked by the defendant testified as to his good character and then testified that the note was in the defendant's handwriting. Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort that both courts can know whether the witnesses really exist and that the evidence really exists. Hall v. State, 202 Ga. 619, 621 ( 44 S.E.2d 234). The record in the instant case does not show that such witnesses were proffered, or if when proffered the court refused to permit the witnesses to testify, or if proffered what questions were asked or what answers were expected from the witnesses. In the absence of this information, the assignment of error is so incomplete as to preclude its consideration by this court.
4. In special ground 3 the defendant objected to the following testimony of Marion Whittaker, a witness for the State, "I know of three peace warrants that have been issued against Mr. Byrd for attacking my sister." (Myrtle, the person alleged in the indictment to have been shot), on the ground that, "if the witness swore out these warrants, let him introduce them in the proper manner, that is purely hearsay." The witness having testified that he knew the facts to which he testified, such testimony is certainly not hearsay. "`The law generally requires the production of the highest evidence of which a thing is capable; and evidence is to be excluded which supposes still higher evidence behind in the possession or power of the party. . . The general rule is most frequently applied to writings where proof is offered of their contents. The writing itself must be produced. But there are many exceptions as to writings.'" Wise v. State, 52 Ga. App. 98, 99 ( 182 S.E. 535). "`Where a matter is collateral to the real issues and comes in question and proof of it is admissible, it may be shown by parol evidence and need not be established by documentary evidence.'" Blocker v. State, 58 Ga. App. 560, 564 ( 199 S.E. 444). The witness's testimony here is as to his information on the collateral fact of the issuance, not the contents, of the writings — the peace warrants — and does not put in issue the reciprocal rights and duties of the parties under the writings, but puts in issue only the collateral fact that the three peace warrants issued. The question presented is not one of primary or secondary evidence, but simply proof of facts wholly collateral to the issue in the instant case where the defendant is charged with assault with intent to murder. The witness's information on these collateral issues was material, its source immaterial. Therefore, it was not reversible error to allow proof by parol testimony of such collateral matters. Hyde v. State, 70 Ga. App. 823, 828 ( 29 S.E.2d, 820); Streeter v. State, 60 Ga. App. 190, 193 ( 3 S.E.2d, 235). Moreover, W. E. Clark, one of the defendant's character witnesses testified on cross-examination, "I do not know anything about a peace warrant being taken out against Mr. Byrd, I have heard there was one," which was unobjected to.
5. During the concluding argument to the jury, the associate counsel for the State made the following remarks: "Gentlemen of the jury, [under the evidence] this was a cold-blooded shooting and the defendant is a cold-blooded criminal." The defendant then and there moved for a mistrial on the ground that such remarks were improper, prejudicial, and scandalous, and not based on the evidence and were an expression of an opinion of guilt. The court overruled the motion in the following language; "I overrule the motion and instruct counsel to confine his remarks to the evidence and reasonable deductions to be drawn therefrom." We think that, in the absence of anything to the contrary, remarks of the associate counsel for the State should be regarded as a deduction from the evidence; hence the insertion by us of the brackets in quoting his remarks above. Floyd v. State, 143 Ga. 286, 289 ( 84 S.E. 971); Johnson v. State, 72 Ga. App. 534, 537 ( 34 S.E.2d 555). "While counsel should be confined to the evidence in the case, and should not be permitted to indulge in abusive epithets of the person on trial, at the same time the field of legitimate argument is not circumscribed by any rule which forbids counsel to draw conclusions from the evidence and in plain words to characterize the conduct of the accused. As to whether the evidence supports such a characterization neither this court nor any other ought to stop to inquire. Counsel for the accused will almost certainly put a different interpretation on evidence tending to show facts from which guilt may be inferred than that placed on the same evidence by the State's counsel; and so long as the latter remains within the domain of construction as distinguished from unwarranted abuse, he is not to be restrained. It is just as legitimate for the solicitor-general to say to the jury that from the facts proved the defendant is a confessed thief as it is for the counsel for the accused to say to the jury that the facts demonstrate that the accused is an innocent and much-wronged man. Both are conclusions. Neither may be right. Each is within the legitimate limits of argument. While the language used by the solicitor-general appears to be harsh, it was, in view of the evidence legitimate." Haupt v. State, 108 Ga. 53, 54 ( 34 S.E. 313, 75 Am. St. R. 19). We think that the associate counsel for the State in the instant case was within the domain of the construction of the evidence as distinguished from unwarranted abuse, and was not going outside of the facts in the record and legitimate inferences deduced therefrom. Under the evidence it is just as legitimate for the State's counsel to argue that this was a cold-blooded shooting and that the defendant was a cold-blooded criminal as it is for the counsel for the accused to argue that the defendant was an innocent man; that the shooting of his stepdaughter was an accident and that the defendant was merely the victim of an unfortunate accident. Both are conclusions drawn from the evidence and the defendant's statement. Neither may be right. Each is within the legitimate limits of argument, and the trial judge did not err in overruling the motion for a mistrial. Taylor v. State, 39 Ga. App. 102, 105 ( 146 S.E. 334); Holmes v. State, 7 Ga. App. 570 ( 67 S.E. 693); Martin v. State, 5 Ga. App. 606 (2) ( 63 S.E. 605); Walker v. State, 5 Ga. App. 367 ( 63 S.E. 142).
6. The criticized excerpts from the charge, when considered in connection with the entire charge, disclose no reversible error.
For the foregoing reasons, the court did not err in overruling the motion for a new trial.
Judgment affirmed. Gardner and Townsend, JJ., concur.