Opinion
75274.
DECIDED NOVEMBER 4, 1987.
Voluntary manslaughter, etc. Crawford Superior Court. Before Judge Wilcox.
Robert M. Bearden, Jr., for appellant.
Willis B. Sparks III, District Attorney, for appellee.
Norman Ellis Thaxton, Jr. was indicted for murder (OCGA § 16-5-1) and hindering apprehension of a criminal (OCGA § 16-10-50). He brings this appeal from his conviction and sentence of voluntary manslaughter (OCGA § 16-5-2) and the hindering apprehension of a criminal charge. Held:
1. Defendant's first and second enumerations of error in essence challenge the sufficiency of the evidence to support the guilty verdicts returned on the charges against him. Construed most strongly in favor of the verdicts, the evidence showed that Willie Battle, the victim, and Nathaniel Respress, a person defendant knew "pretty well," got into a fight in front of Jeanette's, a place near Roberta in Crawford County where patrons "dance and drink and play games." Defendant succeeded in eventually breaking up the fight. Defendant's statement to police following his arrest (although repudiated by him at trial) indicated that Battle beat Respress badly, and that Respress "got back in [defendant's] car [and] said, `I'm going to get my gun and kill his ass.'" Defendant drove Respress badly, and that Respress obtained a shotgun and returned to defendant's car stating, "Carry me back over to Jeanette's." They returned to Jeanette's where Repress shot and killed Battle. Defendant then took Repress to his aunt's home in Jackson, Georgia. Defendant left and was arrested in Monroe County while returning to Roberta.
Defendant was jointly charged with Respress for Battle's murder. "Even though [defendant] may not have inflicted the fatal wound, he can be held criminally responsible for the [homicide] as a party to the crime. Under [OCGA § 16-2-20 (a)] every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises, or otherwise encourages another to commit the crime. [OCGA § 16-2-20(b).]" (Citation and punctuation omitted.) Goins v. State, 164 Ga. App. 37, 38 ( 296 S.E.2d 229) (1982). "Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred. Criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted." (Citations and punctuation omitted.) Lunz v. State, 174 Ga. App. 893, 895 ( 332 S.E.2d 37) (1985). "The jury could reasonably have found that [defendant's] acts proved criminal responsibility as a party to the crime. [Cit.] Viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found [defendant] guilty of [voluntary manslaughter] beyond a reasonable doubt. [Cits.]" Goins, supra at 38. See Jones v. State, 250 Ga. 11 ( 295 S.E.2d 71) (1982), cert. den., 459 U.S. 1176 (1983); Highfield v. State, 246 Ga. 478 (1) ( 272 S.E.2d 62) (1980); cf. Brown v. State, 250 Ga. 862 (1) ( 302 S.E.2d 347) (1983), wherein the court found no evidence of one of the defendants' participation in the shooting aside from his mere presence at the scene.
Having found sufficient evidence to affirm defendant's conviction of voluntary manslaughter, we are compelled to reverse his conviction of hindering the apprehension of a criminal. We agree with the State that the crime of hindering the apprehension of a criminal is not included within the crime of murder, see Moore v. State, 240 Ga. 210 (1) ( 240 S.E.2d 68) (1977); Pressley v. State, 207 Ga. 274 (5) ( 61 S.E.2d 113) (1950), or of manslaughter, see Moore v. State, 94 Ga. App. 210, 213 ( 94 S.E.2d 80) (1956). However, "[a] person commits the offense of hindering the apprehension or punishment of a criminal when, with intention to hinder the apprehension or punishment of a person whom he knows or has reasonable grounds to believe has committed a felony ... , he: (1) [h]arbors or conceals such person; or (2) [c]onceals or destroys evidence of the crime." OCGA § 16-10-50 (a). "This definition eliminates the idea of participation by a person guilty of such an offense in the perpetration of the major crime [as a party to the crime]." Ivey v. State, 186 Ga. 216 ( 197 S.E. 322) (1938); see also Hill v. State, 221 Ga. 65 (6) ( 142 S.E.2d 909) (1965). See generally Moore v. State, 240 Ga. 210 (1), supra.
2. Defendant's third enumeration posits two arguments assigning error to the trial court's admitting into evidence certain statements made by defendant to the police following his arrest. As to defendant's alleged intoxication, we find no error in the trial court's finding that although defendant had been drinking earlier on the night of the shooting, his observed behavior at the time the statements were made (shortly after his arrest and again several hours later) "was not inconsistent with the ability to freely and voluntarily waive rights for the purposes of making a confession. [Cit.]" Smith v. State, 141 Ga. App. 720, 721 ( 234 S.E.2d 385) (1977); accord Carter v. State, 257 Ga. 510 (3) ( 361 S.E.2d 175) (1987); Allen v. State, 231 Ga. 17 (2) ( 200 S.E.2d 106) (1973), cert. den., 414 U.S. 1159 (1974).
We likewise find meritless defendant's assertion that the second interrogation of him by police was conducted after he had told them he did not wish to talk with them. Counsel on appeal correctly notes that trial counsel raised no objection on this ground in the court below. "It is well settled in this state that while evidence may be subject to objection, yet if the only objection made was not properly sustainable or not made on the proper ground, no reversible error is committed by the trial court in allowing the evidence to be submitted to the jury. [Cit.] Thus what would perhaps otherwise be a valid reason why evidence should not be admitted will not be considered on appeal unless that specific reason was urged below. [Cits.]" Moore v. State, 176 Ga. App. 251, 252 ( 335 S.E.2d 716) (1985). This rule applies to confessions and/or incriminating statements, objections to which may likewise be waived through non objection at trial. Reeves v. State, 241 Ga. 44 (1) ( 243 S.E.2d 24), cert. den., 439 U.S. 854 (1978); Abrams v. State, 223 Ga. 216 (9) ( 154 S.E.2d 443) (1967); Hill v. State, 214 Ga. 794 (1) ( 107 S.E.2d 662) (1959).
3. Finally, we find no merit in defendant's challenge to the trial court's charge on impeachment. Although the language of the charge has been disapproved and trial courts urged to discontinue its use, the charge provides no basis for reversal on constitutional grounds. Noggle v. State, 256 Ga. 383 (4) ( 340 S.E.2d 175) (1986). In any event, trial counsel's negative response to the trial court's inquiry concerning objections to the charge raised "a procedural default which bars subsequent appellate review of the charge." Rann v. State, 183 Ga. App. 234, 236 ( 358 S.E.2d 644) (1987); Kelly v. State, 174 Ga. App. 424 (4) ( 330 S.E.2d 165) (1985); see also Gaines v. State, 177 Ga. App. 795 (1) ( 341 S.E.2d 252) (1986).
Judgment affirmed in part and reversed in part. Birdsong, C. J., and Deen, P. J., concur.