Opinion
17756.
ARGUED FEBRUARY 11, 1952.
DECIDED MARCH 10, 1952. REHEARING DENIED MARCH 25, 1952.
Murder. Before Judge Boykin. Troup Superior Court. November 23, 1951.
James E. Weldon, for plaintiff in error.
Eugene Cook, Attorney-General, Hugh C. Carney, Assistant Attorney-General, Wright Lipford, Solicitor-General, and Wyatt, Morgan Sumner, contra.
1. The evidence was sufficient to authorize the verdict.
2. The law of voluntary manslaughter as related to the doctrine of mutual combat was not involved in this case.
3. A witness, whether expert or not, may, after describing the wound, give his opinion that it caused death.
4. It was not error to admit in evidence the clothing worn by the deceased at the time of the homicide.
5. It was not error to exclude hearsay evidence.
No. 17756. ARGUED FEBRUARY 11, 1952 — DECIDED MARCH 10, 1952 — REHEARING DENIED MARCH 25, 1952.
Gus Davidson was charged with the murder of Olin Sands. The evidence on behalf of the State as to what happened at the time of the killing was in substance: On the night of the homicide, the deceased went out to investigate a noise he heard in front of his house, and found that a calf belonging to him had been hit by an automobile. A short distance from his house, near a church, he found the defendant sitting in an automobile with "the lights knocked out of the front fender of the car." The evidence for the State was further: "He asked Gus who ran over his calf. Gus told Mr. Sands he didn't know who ran over his calf. The second time Mr. Sands asked him he said he did not know. Then Mr. Sands says, `Don't tell me a damn lie.' Gus said his brother Lank ran over the calf. Mr. Sands turned around and walked to the truck. Gus had his pistol out all the time Mr. Sands was talking. He pulled it from over side of his leg. When Mr. Sands got back to his truck, Gus shot him."
The defendant in his statement said: "Mr. Sands come back and he asked whose car it was. I told him it was my brother's car. He asked who was driving it. He says, `You know it hit my calf.' I says, `I didn't know whose calf it was. The calf jumped right in front of the left-hand side, the driver's side. If it was your calf, I will pay you for it, and you can have the calf.' So he had a stick. I saw him — had the stick down side of him. When I said I would pay him for the calf and you can have the calf, he took the stick and hit me across my neck and shoulders with the stick, and he hit me with his fist. He ran up to the car and got me again. He had the stick. He grabbed me in the car and pushed me on the opposite side and says, `I will get you. Get out and I will kill you.' And called me a son-of-a-bitch. He run his hand in his front pocket. At the time I was scared. I know he would kill me. He had beat up people, white and colored. It was a blue steel gun. I don't know the name and make, but it was blue steel. He came out of his pocket and shot across and hit me, and I pulled off and drove down to the first house and stopped the car in the yard and flashed out my gun. Mr. Sands came down on me and I shot him."
On the trial of the case, the jury returned a verdict of guilty without a recommendation to mercy. The defendant filed his motion for new trial, which was amended by the addition of six special grounds. The motion for new trial as amended was overruled. The exception here is to that judgment.
1. It appears from the foregoing statement of facts that there is no merit in the general grounds of the motion for new trial.
2. Special grounds 1 and 2 complain because the judge failed to give to the jury in his charge the law of voluntary manslaughter as related to the doctrine of mutual combat. As will appear from the statement of facts in this case, if the contention of the State is true, the defendant was guilty of murder. If the contention of the defendant is true, it was justifiable homicide. There was no evidence of any mutual intent to fight. It was, therefore, not error to fail to charge this principle of law. See Smith v. State, 202 Ga. 851 (15) ( 45 S.E.2d 267); Jackson v. State, 201 Ga. 364 ( 39 S.E.2d 756); Benton v. State, 185 Ga. 254 ( 194 S.E. 166); and Bivins v. State, 200 Ga. 729 ( 38 S.E.2d 273).
3. Special ground 3 complains because, over the timely objection of the defendant, the State was allowed to prove by an undertaker that in his opinion the bullets which entered the body of the deceased caused his death. The objection was that the witness was not an expert and could not give his opinion. The witness, before expressing the opinion, gave a detailed statement of how many bullets entered the body, at what place on the body the bullets entered, and the course or range of the bullets, thus giving the facts upon which the opinion was based. "A nonexpert witness who has observed certain marks on the lips and face of the dead body of an infant may give his opinion of their relation to the cause of death, after stating the facts." Lanier v. State, 141 Ga. 17 (3) ( 80 S.E. 5). "One who is not an expert or a practicing physician may, after describing the wound, give his opinion that it caused death." Fudge v. State, 190 Ga. 340 (2) ( 9 S.E.2d 259), and cases there cited. Whether or not this witness was an expert or non-expert witness, the evidence objected to was clearly admissible.
4. Special grounds 4 and 5 complain because the court, over timely objection of the defendant, allowed in evidence the shirt and underwear worn by the deceased at the time of his death. The contention is that the articles of clothing were not properly identified and had been washed, and, therefore, were not in the same condition as at the time of the shooting. The widow of the deceased positively identified the articles of clothing as being the ones worn by the deceased at the time of his death. She testified that they were turned over to her when removed from the body of the deceased; that she had them washed because they were bloody; and that "They have been in my constant possession ever since that time." This contention is clearly without merit. Johns v. State, 180 Ga. 187 (8) ( 178 S.E. 707); Spires v. State, 171 Ga. 477 (1) ( 155 S.E. 921); Harris v. State, 156 Ga. 582 ( 119 S.E. 519).
5. Special ground 6 complains because of the following occurrence: The attorney for the defendant propounded to a witness, the sheriff of the county, the question, "Were you informed on the night of May 4th, or right close thereafter, that there would be a crowd looking for Gus Davidson? I ask you if you got that information?" Prosecuting Attorney: "Information would be hearsay." The Court: "I sustain the objection. He could state he received information, but cannot state what the information was. I sustain the objection."
The contention is that the sheriff was a witness for the State, and the defendant could not know what his answer would be, but the defendant had good reason to believe that the witness would answer that he did get information that large crowds were hunting for the defendant, and that this evidence would have been helpful to the defendant because the State had introduced evidence of flight. The trial court, under the ruling complained of, simply denied to the defendant the right to have the sheriff detail what other people had said to him. This kind of evidence would clearly have been hearsay and inadmissible under the provisions of Code § 38-301. It follows from what has been said above, there is no merit in any of the assignments of error.
Judgment affirmed. All the Justices concur.