Opinion
17246.
OCTOBER 11, 1950.
Murder. Before Judge A. M. Anderson. Bibb Superior Court. July 7, 1950.
W. O. Cooper Jr., for plaintiff in error.
Eugene Cook, Attorney-General, Charles H. Garrett, Solicitor-General, William M. West, Frank B. Stow and H. Grady Simmons, Assistant Attorneys-General, contra.
1. The affidavits of the defendant and his counsel failed to show the exercise of ordinary diligence to discover the alleged "newly discovered evidence" prior to the time of the trial.
2. It was not reversible error for the trial judge in his charge to repeat correct principles of law favorable to the State, where the repetition did not omit principles of law favorable to the defendant.
3. There was sufficient evidence to support the verdict, and the trial judge did not err in overruling the general grounds of the motion for new trial.
No. 17246. OCTOBER 11, 1950.
Tillman Patterson was convicted and given a life sentence on an indictment charging him with murder. Two witnesses, who were present at the time of the homicide, testified for the State. The witness Iona Hooks testified (in so far as material here) in substance: On the night of the homicide the deceased, Walter Phelps, entered the place of business of Morgan Phillips, a white man, at about 10 o'clock. He sat down on a stool at a counter and ordered a sandwich. "Tillman Patterson came in there after Phelps was in there." Phelps said, "Hurry and fix the sandwich." Patterson "asked Phelps who he was talking to, and Phelps said, `I wasn't talking to you.'" While Phelps was eating his sandwich, L. J. Lewis, who had entered with Phelps, went outside and Patterson went out behind him. Phelps finished his sandwich and started out the door. He met Patterson at the door and Patterson cut him in the neck. If Phelps had any weapon, the witness did not see it, and he did not have his hands in his pocket. The witness did not hear any conversation between Phelps and Patterson at the door prior to the cutting.
Morgan Phillips testified: He was hard of hearing, but he was close enough to Phelps at the time of the homicide to have laid his hand on him if it had not been for a glass partition between the witness and Phelps. Phelps made two or three efforts as though he was going out the door, "but every time he would make an effort to go out Patterson would stop him, wouldn't let him go out . . As to what Phelps did to Patterson, what sort of demonstration Phelps made — none. . . Buddy [Phelps] was standing with his back up against the glass partition and right hand on the door holding the door open, and his left hand he had it up several different times, I say four to six times where I could see it, making motions with his left hand while he was talking. As to whether he had any weapon — he had nothing in his hand. He did not ever reach in his pocket like he was going to produce a weapon. . . Just as he dropped his hand Patterson hit him . . I thought he had hit him with his fist."
Dr. T. J. Howard testified for the State: He was an intern at the Macon Hospital, and a graduate doctor and physician. He remembered when Walter Phelps, a young negro about sixteen to eighteen years old, was brought in the hospital, about 10:30 o'clock one night. Phelps was in poor physical condition and suffering severe shock, and bleeding profusely from lacerations on the left of his neck. Phelps had been cut with some sharp instrument like a knife or razor. When an artery is severed, you find a spurt of blood every time the heart beats, and that was what he found in that case. The deceased died in the emergency room at the hospital.
The defendant in his statement to the jury stated in part as follows: "When I started to the door I looked back, I saw Phelps and this other fellow there with a knife, they were following me; one of them had his right hand in his coat pocket, kept close enough to put their hand on me, I turned around, I stepped back, I say, `Why are you fellows following me?' This fellow that had his hand in his coat pocket, he looked at Phelps and mumbled something, but what I don't know; that time Phelps threw his right hand in his pants pocket, he kept advancing on me; I put my hand in my pocket, I told him to get back and don't come on me; he snatched his hand out of his pocket, I pulled my knife out, opened it, I said, `Get back, don't come on up on me. Phelps made a motion and threw up his hand, that is when I cut at him. Light wasn't too good in that hallway, I couldn't see well in the alley-way and I believed that he was trying to kill me, he was either going to cut me with a knife or shoot me with a pistol or something. I honest to goodness believe he was going to kill me. I had in mind no intent whatsoever to kill this fellow, I wasn't trying to kill him, I didn't want to kill him, I only tried to stop him from killing me, that is the only way I had to defend myself."
The defendant's motion for new trial, containing the usual general grounds, and five amended grounds, was overruled, and the exception is to that judgment.
1. Ground 1 of the amended motion for new trial is based upon alleged newly discovered evidence. This evidence is contained in the affidavit of Dr. T. J. Howard (who testified as a witness for the State), which was, in substance, that at the time the clothing of the deceased was removed to place him on an emergency operating table in the hospital, an open knife, with a blade approximately six inches long, fell from some part of his clothing. This ground of the motion is supported by accompanying affidavits as to the character and associates of the witness, Dr. Howard, and the affidavits of the defendant and his counsel to the effect that affiants "did not know of the facts and evidence set forth in the affidavit of Dr. T. J. Howard until after the trial and conviction of the defendant," and "could not have discovered same by the exercise of ordinary care and diligence."
The witness, Dr. Howard, was not cross-examined by counsel for the defendant upon the trial. The affidavits of the defendant and his counsel, that they did not know of the evidence, and that it "could not have been discovered by the exercise of ordinary care and diligence," express nothing more than a mere opinion, and state no facts upon which the trial judge could have determined whether or not the defendant and his counsel had used due diligence. Taylor v. State, 132 Ga. 235, 237 ( 63 S.E. 1116); Redding v. State, 183 Ga. 704 ( 189 S.E. 514). The defendant was arrested within a few hours after the homicide on November 25, 1949; he was indicted on December 7, 1949; and his trial began on February 22, 1950. Neither the affidavit of the defendant, nor the affidavit of his counsel, shows whether counsel was employed or appointed, the date of his employment or appointment, or the diligence of counsel in his investigation of the charges against the defendant.
Where a new trial is sought upon the ground of newly discovered evidence, it is incumbent upon the defendant and his counsel to show the exercise of ordinary diligence in discovering the evidence, before the trial, and the opinion of the defendant and his counsel, after the trial, that the evidence could not have been discovered by the exercise of ordinary diligence, is insufficient under our law to require the grant of a new trial.
2. Grounds 2, 3, 4, and 5 assign error on the charge of the court. In each of these grounds it is conceded that the charge excepted to was correct as an abstract principle of law; but it is contended that the court repeatedly gave in charge to the jury principles of law favorable to the State, and stressed the contentions of the State, and that the charge was, therefore, argumentative and amounted to an expression of opinion by the trial judge.
That a charge which is argumentative and expressive of an opinion by the trial judge as to what has been proved, would be error, is so well recognized as to require no citation of authorities. It is pointed out in the brief of the able solicitor-general for the State that in the present case "the law with reference to reasonable doubt . . was charged eleven times." There was no such repetition in the charge of the law favorable to the State, and omission to charge principles favorable to the defendant, as would require the grant of a new trial. See Simms v. Floyd, 65 Ga. 719, 720 (3); Lewis v. Tatum, 55 Ga. App. 24, 26 ( 189 S.E. 375).
Judgment affirmed. All the Justices concur, except Wyatt, J., who dissents.
I dissent from the ruling in headnote 1 and the corresponding division of the opinion, and from the judgment of affirmance.