Opinion
37394.
DECIDED OCTOBER 15, 1958. REHEARING DENIED NOVEMBER 7, 1958.
Voluntary manslaughter. Fulton Superior Court. Before Judge Tanksley. July 11, 1958.
Harris Gower, Wm. T. Brooks, for plaintiff in error.
Paul Webb, Solicitor-General, Frank S. French, Eugene L. Tiller, contra.
The evidence is sufficient to sustain the verdict under the record before us.
DECIDED OCTOBER 15, 1958 — REHEARING DENIED NOVEMBER 7, 1958.
The defendant was indicted for the offense of murder, convicted of voluntary manslaughter and sentenced to not less than ten or more than twenty years in the penitentiary. Counsel for the defendant filed a motion for new trial on the general grounds only, which the court denied, and it is on this judgment that the case is here for review.
During the trial counsel for the defendant filed a petition for a rule nisi, in writing, asking that certain evidence be given to counsel for the defendant to be examined and copied and used in preparation of the case. Counsel asked for the following: "Original reports of the detectives who investigated the cause; original copy of written statements taken from the witnesses interviewed in the cause in question; photographs taken at the scene of the alleged crime by a member of the Atlanta Police Department; two .25 automatic pistols and one Smith Wesson revolver removed by the Atlanta Police Department from the scene of the alleged crime."
Judge Virlyn B. Moore issued a rule nisi to the proper parties. Upon hearing, Judge Moore issued the following order: "The prayer of the petition insofar as it seeks the production of the original reports of the detectives, and the original copy of written statements taken from witnesses is denied. The prayer as to the inspection of the photographs referred to in paragraph 4 of the petition is granted. With reference to the pistols referred to in said paragraph 4 of the petition, it is directed that the pistol which it is contended by the police authorities was used in the commission of the alleged crime shall be submitted to defense counsel for their inspection and for the making of such ballistic or other tests as they may desire, in the presence of and at the convenience of police authorities. With reference to the other pistols therein referred to, said counsel are permitted to inspect said pistols but not to take them for the purpose of making tests."
The evidence shows substantially as follows: Richard K. Jones, an investigator with the U.S. Alcoholic Tobacco Tax Unit, testified that he and another investigator met the defendant at a restaurant at 14th Street and West Peachtree in Atlanta, Georgia, on October 11, 1957, to discuss the alleged whisky activities of one Ruby Ingram; that they drove to the vicinity of 959 Hampton Street and saw her car parked in front; that they went to a pay telephone where the defendant called her within the witness' hearing and questioned her about a boy named Bobby who was allegedly involved with her in whisky activities; that the defendant in the course of the conversation said, "Do you want me to come over there and fix you?" or words to that effect; that the defendant said she hung up on him and then he told the witness that if they were not smart enough to catch her that he could; that he had a shotgun and he would go over there and "kill the whole damn bunch." The witness then testified that he warned the defendant not to do anything foolish and left him in the vicinity of the Hampton Street address. The witness further testified that the defendant was not an employee of the Alcohol Tax Unit, he was an informer; that he suspected that the defendant had a gun but he had no reason to search him. On cross-examination the same witness testified that Ruby Ingram had been under previous investigation by his agency and he was interested in securing information on her activities.
E. C. Honea testified that the defendant came to his house which is directly across the street from 959 Hampton Street and said he was an F.B.I. agent and he wanted to watch the house across the street; that the defendant borrowed the telephone and told the party at the other end that he was there and that he was looking for a cream colored 1956 Ford which would be the "pay-off"; that the defendant waited on the porch and the witness went to bed and fell asleep; that later he was awakened by the sound of an automobile and he ran to the door and saw the defendant and Ruby Ingram scuffling in a car across the street; that he saw Ruby's mother (the deceased) run out of her house and come around to the driver's side of the car, then attempt to stop a passing motorist who stopped momentarily, then drove off; that the mother ran in the house and then came back again; that Ruby, her mother and the defendant were on the opposite side of the car scuffling when the witness heard a shot, then he saw the defendant pull Ruby by the arm out behind the car; that she began to scream and was down on her knees begging the defendant to turn her loose so she could see about her mother; that the defendant let go and walked off down the street towards Tenth Street, and the witness never did leave his house. On cross-examination the same witness testified that he could not ascertain whether any of the participants had guns or anything in their hands.
Ruby Ingram testified that she knew the defendant as a friend of her husband and that in her husband's absence she had befriended him helping him to find a place to live, lending him her car and doing other things for him; that he had taken her son places while she stayed at home with the baby; that she had invited him to her home on several occasions during the first week when he was trying to get settled; that the second week she spoke to him about coming to her house so often since her husband was away and he quit coming so often; that he began to call on the telephone and she let him borrow her car to sell a picture and he kept it three or four days; that after that she did not want to have anything more to do with him and when he would call she would hang up; that after that he would call and threaten to kill her and that he came to her house on Eugenia Street and she couldn't get rid of him so she went to her mother's to stay at night, going home during the day so her son could attend school and her baby could get her shots from the county health nurse; that at night while she was at her mother's house the defendant would call and say he would kill her (the mother) if she didn't get Ruby on the phone; that when she returned to her home one night around midnight her telephone started ringing and she knew it was the defendant. She tried to call her mother but couldn't get her and then called the police; that when she talked with the police the defendant was present and the police arrested him; that on October 11th the defendant called her repeatedly and threatened her and told her that if she did not talk to him he was going to come there and she said she would not be there, that she was leaving, and witness went to her mother's house taking her children. About ten-thirty that night the witness decided to return to her home to get enough clothes to stay with her mother until Monday and she and her son started out to her car which was parked in front; that she got in the driver's side and when she reached to unlock the door for her son the defendant lunged at the car with the gun in his hand, and she yelled for her son to run as she sounded the horn; that the defendant jerked the door open on the driver's side and pushed her over. At this point the witness identified a small pearl-handled nickel-plated gun which she testified did belong to her, and that the defendant had previously taken it from her, and identified her pocketbook containing a gun which she had with her that night. She testified that she did not remove the gun from the pocketbook. The witness further testified that her mother heard the horn and came out to the car; that she told her the defendant had a gun in her side and the defendant said yes and he was going to "kill her if you don't get away from this car"; that the mother went back in the house, then returned to the car; that she believed her mother had her gun but couldn't say that she saw her with it; that about that time the witness broke away from the defendant and then she heard a shot; that she looked back and the defendant and her mother were standing in the car door and she went on behind the car because she knew he had shot her mother and was going to shoot her; that the defendant caught her behind the car where she fell to her knees and started praying; that the defendant was standing over her saying, "Give me the keys. I am going to kill you;" that she asked him if he killed her mother and he said yes; that she begged him to let her go to her mother and she didn't remember much after that.
R. E. Harper, a police officer, testified that he answered the call to 959 Hampton Street on the night of October 11th and upon arrival found the body of the deceased lying on the sidewalk; that someone said, "There goes the man down the street, he has still got the gun," and the witness ran after him, overtook him and relieved him of two loaded pistols and a six-inch pocket-knife, which items he identified as State's exhibits; that the defendant made a statement to the witness in which he admitted that he shot the deceased and it was self-defense.
Sylvia Wilbanks testified that she was riding by with some friends and they saw the defendant and Ruby and Ruby's mother; that the mother came out in the street and put her hands up to stop them and she did not see anything in her hands; that they continued on but looked back, saw the scuffle, heard the shot and saw the mother fall.
Constance Moreland gave testimony substantiating that of Ruby Ingram testifying that she was in the house at 959 Hampton Street when Ruby and the boy left; that she heard the horn blowing and saw Ruby's mother go out; that the boy came back and said they needed help; that the witness was calling the police when the mother came back in the house then turned directly around and went back out; that she heard one shot but could not see out to the car; that after the shooting someone came in the house whom she did not see and then she found Ruby's pocketbook on the couch with the contents scattered.
O. W. Jordan, a city detective, testified that he investigated the alleged murder of Mrs. Allie May Ridings and made pictures of the scene and that the defendant stated to him that he wished he had killed Ruby too. He then identified many State exhibits.
Two Crime Laboratory officials gave testimony as to the guns and the cause of death of the deceased.
On cross-examination N. M. Taylor, a city detective doing turnkey duty at the station house where the defendant was brought in testified that the defendant made the statement that he was glad and he wished to hell he had got Ruby too, that he would regret it for the rest of his life that he didn't get her at the same time.
The defendant in his statement said that he and Ruby Ingram had been very friendly since they first met and that he had been free to come and go from her house; that they had had sexual intercourse regularly and Ruby had alternately cursed him telling him to stay away and then called him asking him to come back; that he had been a friend to her children and had nothing against her mother; that he had become suspicious of her nightly activities which she called "business;" that on the night in question he was attempting to talk with Ruby in her car when her mother appeared with a gun and he pulled Ruby over in front of him to keep her mother from shooting him; that in the scuffle Ruby got away and her mother put the gun in his face and he fired the one he had; that he saw Ruby praying and then helped her turn her mother over; that he picked up another 25 automatic that was lying on the ground; that he asked the girl at the house for the car keys to take Ruby's mother to the hospital; that everyone started crowding around so he walked off and was later arrested.
Several witnesses including the preacher, her maid and her next door neighbor testified as to Ruby's character, which they said was good.
Counsel for the defendant argue that if the evidence asked for had been given him that perhaps the defendant would have been given a less severe punishment. In addition to the photographs, etc., mentioned in Judge Moore's order which we have quoted hereinabove, the record disclosed that the defendant was furnished a copy of a written statement made by him to police officers, which the defendant read in full into his statement to the jury. In Wilson v. State, 93 Ga. App. 229 ( 91 S.E.2d 201), cited by counsel for the defendant, it appears that the only witness to a homicide was lodged in jail and counsel for the defendant was refused the right to contact the witness. Such is not the situation in the case at bar. Here counsel for the defendant presumably had the same opportunity to get the statement of witnesses as did counsel for the State. The trial court's order was proper, under the record before us. The evidence is sufficient to sustain the verdict.
Judgment affirmed. Townsend and Carlisle, JJ., concur.