Opinion
48939.
ARGUED JANUARY 16, 1974.
DECIDED JANUARY 30, 1974.
Voluntary manslaughter. Fulton Superior Court. Before Judge Tidwell.
Joe Salem, for appellant.
Lewis R. Slaton, District Attorney, Morris H. Rosenberg, J. Melvin England, Carter Goode, for appellee.
In the trial resulting in this manslaughter conviction, the defendant admitting his presence at the scene and the shooting of the deceased, the evidence supported a verdict of manslaughter based on mutual combat.
The special grounds of the motion for new trial are without merit.
ARGUED JANUARY 16, 1974 — DECIDED JANUARY 30, 1974.
The defendant Freeman was indicated in two counts for the murder of Saffles and Hill. He admitted the shooting and consequent deaths and contended the homicides were necessary in self defense. The jury found him guilty of murder without recommendation in the Hill killing and of voluntary manslaughter of Saffles. The trial court granted the motion for new trial in the Hill case on general discretionary grounds, and denied the motion going to the Saffles count.
The evidence of two eyewitnesses who happened to be on the street at the time, and who were unknown to the participants, the victims, or each other, was to the general effect that a Cadillac containing the two victims and driven by one Darlene McLane was parked at the curb by a parking lot at about 3:00 a. m. in the Buckhead section of Atlanta; that two cars approached, one turning into the lot at the right of the Cadillac while the other halted in the street alongside it; that the defendant approached from the car in the parking lot and shot several times into the parked vehicle, then re-entered his Chevrolet with another person and drove rapidly down Peachtree Street. One of the eyewitnesses, with her husband, chased the speeding car and got the license number, which turned out to belong to a vehicle leased by a rental agency to Zimmerman, a nightclub owner who was the defendant's apparent employer. From this point the evidence is highly contradictory and revolves around the relationship of the various people involved. It appears that Hill, one of the victims, was in love with Darlene McLane, driver of the Cadillac, and that he had informed Zimmerman that her husband intended to blow up the night club. It further appears that shots were fired from the Cadillac, and that shots were also fired into the Cadillac from the car which had paused in the street beside it. It was uncontradicted that Hill had asked Zimmerman for a loan, and that Zimmerman had on the occasion of the slaying sent the defendant to Hill to give him money. There is also the testimony of the eyewitness Sutton that as the defendant's car shot out of the parking lot past him he heard a voice say, "Get him, Homer," and the defendant fired at him as he dove for the pavement. By inferences from these scattered facts the state attempted to establish a type of gangland killing, and the defendant a plot against his life under such circumstances that the homicides would be justifiable.
This appeal is from the voluntary manslaughter conviction in the Saffles case.
1. The defendant contends that the assistant district attorney violated his Sixth and Fourteenth Amendment rights in his opening statement while introducing others at the counsel table, one of them as "our official agent in charge of what we call our intelligence unit, and he has the responsibility of supervising the information about organized crime and also is involved in certain special unusually important cases." The court ruled that the remark would be improper unless there was evidence sustaining a gangland type slaying. At the conclusion of the evidence the motion was renewed and overruled. We find no error. The evidence as a whole suggested that various persons engaged in pimping, prostitution and other illegal activities, were engaged in a private feud accompanied by threats of bombing a place of business, and that the homicides occurred when two automobiles containing an undetermined number of people hemmed in a third car during an exchange of money and gunned down the two passengers. Even the defendant's statement shed no other light on why, assuming he spoke the truth, the men he shot should have drawn guns on him as he approached their car for the ostensible purpose of bringing them money. "The solicitor-general in commenting on the evidence in his argument may advance and urge any theory as to the motive which is not absolutely inconsistent with the facts and circumstances in proof." Sterling v. State, 89 Ga. 807 ( 15 S.E. 743).
2. The charge on mutual combat excepted to in the third enumeration of error is taken almost verbatim from that approved in Cribb v. State, 71 Ga. App. 539 (3) ( 31 S.E.2d 248).
3. Enumerations 4 and 5 complain of the court's instructions on the definition of conspiracy and on repeating Code Ann. § 26-801 and § 26-802. From what we have said in the first division it follows that conspiracy was or might have been involved in the case. A charge on this subject is error only where there is insufficient evidence, circumstantial or otherwise, to support the theory. Wilson v. State, 94 Ga. App. 588, 593 ( 95 S.E.2d 733).
4. Enumerations 6 and 7 urge error in failing to give certain requests on justifiable homicide. There is no complaint of the instructions regarding justifiable homicide as given, and which appear to be complete and accurate. While the words "the defendant contends" were omitted, it is obvious that the instructions related to the defense urged. Failure to give a charge in the exact language requested will not require a new trial where it covers substantially the same rules of law. Hardwick v. Price, 114 Ga. App. 817 (3) ( 152 S.E.2d 905); Young v. State, 226 Ga. 553 (5) ( 176 S.E.2d 52).
5. The testimony of the eyewitness Sutton is in some details at odds with a statement taken from Sutton's friend, a passenger in his automobile parked up the street. It is contended that the statement was deliberately suppressed and the witness not called to testify, and further that Sutton's testimony, as shown by such statement, is perjured. Under former Code § 110-706 a new trial could not be obtained on perjured testimony unless the guilty party had been convicted and unless the testimony was essential to the verdict being attacked. Although a perjury conviction need no longer be obtained as a condition precedent, it is obvious that courts will not lightly set aside verdicts merely because of contradictions between witnesses and proposed witnesses. Nothing in this record indicates any wilful misstatement on the part of this disinterested bystander. As to the memorandum of Sutton's companion, the contradictions are minor, other evidence substantiates generally the testimony of Sutton, and no disobedience of any law or court order on the part of the district attorney's office is urged to support the "unlawful suppression" charge. This court can reverse a jury verdict only for errors of law, and none is shown here.
6. Enumeration nine is based on alleged newly discovered evidence which might have been offered by one Gary Nicholson. The attached affidavits show that he would have contradicted the evidence of the eyewitness Mrs. Valencia in two particulars: while she placed herself, at the time of the shootout, in her car turning into Bowling Way, he places the car in the adjoining parking lot with her standing beside it (which might have made a difference in visibility) and where she testified that when she and her husband followed the defendant's vehicle after the shooting she both obtained the tag number and a good look at the defendant, Nicholson maintains that she told him they followed the car and obtained the tag number but could not get close enough to identify the occupants. Since the defendant admitted being in the car and admitted the shooting, these discrepancies are not likely to have had any material effect on the verdict. Newly discovered evidence which is merely impeaching and contradictory to evidence given is not of such a character as to require a new trial. Stuckey v. State, 176 Ga. 252 (3) ( 167 S.E.2d 519); Code § 70-204.
7. (a) A peripheral figure, Larry Gene Barry, was not called as a witness, but there was testimony placing him at the scene of the crime. Defendant's counsel complains that the special investigator Hewett knowingly misinformed him that this was an assumed name of an unlocated person, whereas it appears the police both knew him and where to locate him. An affidavit by Hewett shows these facts but not when they were discovered; therefore, it cannot be established by the record whether or not Hewett misled defendant's counsel and whether or not he swore falsely as contended. In view of the further fact that what Barry's testimony might have been is a complete mystery, no reversible error is shown.
(b) As to the last enumeration, a party to a cause cannot rely on the presence of a witness in the mistaken belief that she will be subpoenaed by the other side.
Judgment affirmed. Hall, P. J., and Stolz, J., concur.