Opinion
41436.
SUBMITTED JULY 7, 1965.
DECIDED SEPTEMBER 8, 1965. REHEARING DENIED SEPTEMBER 22, 1965.
Involuntary manslaughter. Habersham Superior Court. Before Judge Smith.
Jack N. Gunter, for plaintiff in error.
Herbert B. Kimzey, Solicitor General, contra.
1. After a witness is challenged as being incompetent to testify, the decision of the trial court declaring such witness competent after examination will not be interfered with unless such discretion is abused.
(a) Where a ruling is invoked by a party the judgment of the court thereon is not an expression of opinion by the trial court.
2. A hypothetical question, based in part on facts not supported by the evidence, is properly excluded.
3. Where remarks, based upon hearsay, are placed on a photograph which is otherwise admissible into evidence, a judgment excluding such photograph is not reversible error.
4. Evidence, the admissibility of which is doubtful, should be admitted and its weight left to the determination of the jury.
5. It is not error, in the absence of timely written request, to fail to charge on the shifting of the burden of evidence after the insanity of the defendant has been established.
6. Where documentary evidence is offered as a whole and part thereof is inadmissible it is not error to exclude all such evidence.
7. Inasmuch as the case must again be tried neither the usual general grounds, nor a special ground of the motion for new trial dealing with newly discovered evidence, will be passed upon.
SUBMITTED JULY 7, 1965 — DECIDED SEPTEMBER 8, 1965 — REHEARING DENIED SEPTEMBER 22, 1965.
Willie Green was convicted of involuntary manslaughter under an indictment for murder. On the trial there was evidence that the defendant had struck the deceased, his mother, with a piece of stovewood after she "came at him" with an open knife, that the next day, during another encounter the defendant again struck the deceased, and she was carried to a hospital where she later died. The defendant introduced evidence of his having been twice declared insane and committed to the Milledgeville Hospital, as well as evidence that he was presently incapable of knowing right from wrong. After conviction the defendant's amended motion for new trial was overruled and he now assigns error on such adverse judgment.
1. The first special ground of defendant's amended motion for new trial assigns error on the ruling of the trial court that a witness was competent after the defendant had raised the question of such witness's competency. Upon the call of such witness the following transpired: Counsel for defendant: "Your Honor, before this witness testifies we challenge her mental competency." Solicitor general: "We will make a showing, Your Honor." The witness was then asked a series of questions including the question if she knew right from wrong, and what it meant to take an oath, after which the trial court ruled: "The court holds that she is competent, let the case proceed." Counsel for the defendant objected: "Please the court, I don't believe that is adequate," and the court stated that it had ruled.
Counsel for the defendant did not seek to introduce any evidence contradictory to that offered by the State, and under the decision in Schamroth v. State, 84 Ga. App. 580 ( 66 S.E.2d 413), and the cases and Code sections there cited, the trial court did not abuse its discretion in ruling the witness was competent to testify. Nor did the ruling of the court that the witness was competent amount to an expression of opinion by the court. See Herndon v. State, 45 Ga. App. 360 (4) ( 164 S.E. 478); Daniels v. Avery, 167 Ga. 54 (3c) ( 145 S.E. 45).
2. Special ground 2 complains of the exclusion of testimony of a witness for the State while being cross examined by the defendant's counsel. The question asked, a hypothetical question, was based in part on facts not supported by the evidence, and the trial court did not err in overruling such ground of the motion for new trial. See Kuttner v. Swanson, 59 Ga. App. 818, 824 ( 2 S.E.2d 230); Chandler v. Alabama Power Co., 104 Ga. App. 521 (1) ( 122 S.E.2d 317).
3. Special ground 3 complains of the exclusion from evidence of a photograph identified as being of the room where the fatal blow was allegedly struck. The witness who so identified such photograph, and who was not present when the encounter between the accused and the deceased allegedly took place, placed a mark on the photograph "where he understood the accused was standing when the deceased attacked him with a knife."
The photograph was of the kitchen where the fatal blow allegedly took place and as such was properly identified as to make the photograph admissible (see Toler v. State, 213 Ga. 12 (5) ( 96 S.E.2d 593)), but the addition of the mark placed thereon, and to which the objection was made, as to where the witness understood the accused was standing was hearsay and the trial court did not err in excluding such evidence.
4. Special ground 4 complains of the exclusion from evidence of a knife found by a police officer in the residence where the accused allegedly struck the deceased. There was evidence adduced that the defendant struck the deceased in an effort to repel an attack being made by the deceased with a knife "with the blade open" and the knife sought to be introduced in evidence was of that type, and was found on the premises by a police officer in a "pocketbook" that looked like one owned by the deceased.
"It has long been the rule in this State that where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury [citing cases]." Lovejoy v. Tidwell, 212 Ga. 750, 751 ( 95 S.E.2d 784). While there was no direct evidence that the knife sought to be introduced in evidence was the knife being used by the deceased, under the circumstances, the trial court should have admitted the same in evidence and left its weight for the jury.
5. Special ground 5 assigns error on the failure of the trial court to charge, without request, on the shifting of the burden of evidence after the insanity of the accused had been established. Under the decisions of the Supreme Court in the cases of Quattlebaum v. State, 119 Ga. 433 (7) ( 46 S.E. 677); and Harris v. State, 155 Ga. 405, 409 ( 117 S.E. 460), the failure to so charge was not error in the absence of a timely written request.
6. Special ground 6 complains of the exclusion of a post mortem examination report from evidence. Under the provisions of the Act of 1953 (Ga. L. 1953, Jan. Sess., pp. 602, 611; Code Ann. § 21-219), reports of post mortem examinations are admissible in evidence. However, the post mortem examination report contained extraneous matter, including hearsay information obtained by the medical examiner from unknown sources. Under the decisions of this court ( Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 ( 99 S.E.2d 370); Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 438 ( 103 S.E.2d 138)) dealing with Code Ann. § 38-711, this part of the report which included matter not contemplated by the Act of 1953, supra, was properly excluded from evidence. Where the assignment of error complains of the exclusion of the evidence as a whole it does not require the grant of a new trial where a part thereof is inadmissible. See Chambers v. Wesley, 113 Ga. 343 (2) ( 38 S.E. 848); Morgan v. Mull, 101 Ga. App. 36, 37 ( 112 S.E.2d 661). No reversible error is shown by this ground of the motion for new trial.
7. The sole remaining special ground, which deals with newly discovered evidence, and the usual general grounds of the motion for new trial will not be passed upon inasmuch as the case must again be tried.
Judgment reversed. Eberhardt and Pannell, JJ., concur.