Opinion
33726.
DECIDED SEPTEMBER 21, 1951.
Shooting at another; from DeKalb Superior Court — Judge Guess. June 19, 1951.
Herbert Johnson, Henry M. Hatcher Jr., R. R. Rhudy, for plaintiff in error.
Roy Leathers, Solicitor-General, Clarence Peeler Jr., contra.
1. Evidence constituting a part of the res gestae of the offense is admissible even though it may incidentally tend to prove the defendant's guilty of some other offense for which he is not on trial.
2. The opposite party in a trial has a right to a thorough and sifting cross-examination. Where, as here, a witness for a defendant on trial for assault with intent to murder states on direct examination that the defendant has never been in trouble of this kind before, it is the right of the State to prove on cross-examination knowledge of the witness gained from the defendant's statements to him concerning a previous altercation in which the defendant suffered a knife wound.
3. To establish his plea of self defense, the defendant must show that the circumstances were such as to excite the fears of a reasonable man that his life was in danger; a mere unreasonable apprehension or suspicion of harm being insufficient.
DECIDED SEPTEMBER 21, 1951.
The defendant James Weldon was indicted and tried in the Superior Court of DeKalb County for assault with intent to murder and was convicted of shooting at another. The prosecuting witness testified for the State in substance that on the night of November 25, 1950, he and another police officer received a call to go to a designated address; that they first talked to the defendant's wife and landlady on the porch of the house, and then went to a small house about a hundred feet in the rear in which the defendant was living; that he knocked on the door and the defendant asked who was there; that they replied it was the police; that the defendant then fired five shots through the door with a shotgun; that the first load hit the witness about the waist and abdomen and his companion pushed him off the porch so that he would not receive the other loads of shot; that about 40 shot struck his body, as a result of which he required hospitalization; that the police officers went to the squad car, radioed for help and returned to the house; the witness, having procured his shotgun from the car, fired into the house several times. The defendant then came out of the door with his hands up and the witness began to search him, whereupon the defendant attempted to grab the witness's gun and the witness hit him several times, knocking him down. He was then placed in the police car and handcuffed.
One witness for the defense testified that he and the defendant had been drinking bootleg liquor all that afternoon and when he left the defendant was as drunk as he had ever seen a man get. A former employer testified in substance that the man was a good worker and well-mannered when he had not been drinking. The defendant's brother testified on direct examination as follows: "James has never been in any trouble like this before that I know of. The only trouble he has ever been in was just drinking. A few years ago he got a lick and fractured his skull and he stayed in the hospital, and I think they had to put a plate in, anyhow when he is drinking a lot he just goes all to pieces. When he ain't drinking he is just as nice and fine as he can be. I have never known him to be in trouble when he was not drinking. A certain amount of liquor affects him more than it would anyone else and this has resulted since this lick he secured." The defendant contended in his statement to the jury that he had been drinking that afternoon, after which he had gotten into an argument with his wife about another man; that she had gone out threatening to bring back the man and have him "beat up" the defendant; that when he heard the knocking on the door he asked who was there but did not hear the reply and, assuming it was the man his wife had gone for, he fired through the door, and that he then surrendered.
Following conviction the defendant made a motion for a new trial on the general grounds which was later amended by the addition of seven special grounds. The overruling of this motion is assigned as error.
1. In the first ground of the amended motion for a new trial error is assigned on the testimony of the police officer that the defendant emerged from the house with his hands in the air, and, as he got close enough to the witness, attempted to seize his shotgun, which evidence was objected to on the ground that it referred to another crime not incorporated within the indictment. Evidence of the commission of a crime other than the one charged is generally not admissible. Cawthon v. State, 119 Ga. 395 (2) ( 46 S.E. 897). However, such evidence may be admissible as bearing upon the questions of motive or intent, or when it forms part of the res gestae, or is evidence of guilty knowledge, or tends to show other attempts by the accused to commit the same crime upon the victim of which he stands charged. See Fowler v. State, 189 Ga. 733 ( 8 S.E.2d 77); Robinson v. State, 62 Ga. App. 355 ( 7 S.E.2d 758). As stated in Floyd v. State, 143 Ga. 286 (2) ( 84 S.E. 971): "Acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae", and where, as here, the defendant came out of the house, testimony that almost immediately thereafter he attempted to seize the officer's gun would have a direct bearing, as being part of the res gestae and tending to refuse the self-defense theory of the defendant. This ground is without merit.
2. The second and third grounds of the amended motion for a new trial contend that the court erred in allowing over objection evidence elicited from the defendant's brother on cross examination as to previous convictions for drunkenness and statements the defendant had made to him concerning a fracas in which he had received a knife wound. The witness was called by the defendant for the purpose of proving that the defendant had suffered a skull fracture, as a result of which whisky affected him more than an average normal person, and that he never got into trouble except when he had been drinking. In answer to a question by defendant's counsel he testified, "James has never been in any trouble like this before that I know of." The questions on cross-examination were directed to an incident of which the witness had knowledge where the defendant had been cut in a street brawl, and to previous arrests for drunkenness. Code § 38-1705 provides as follows: "The right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him." Control of the cross-examination is largely within the discretion of the trial court. McNabb v. State, 70 Ga. App. 798 ( 29 S.E.2d 643). This discretion will not be controlled unless abused. Sweat v. State, 63 Ga. App. 299, 301 ( 11 S.E.2d 40). Where the purpose is to impeach the witness, great latitude in cross-examination may be allowed. Thompson v. State, 181 Ga. 620 ( 183 S.E. 566). Where a witness testifies as to the defendant's character, he may be cross-examined as to specific acts for the purpose of testing his knowledge. Mimbs v. State, 189 Ga. 189, 192 ( 5 S.E.2d 770). The cross-examination of the witness properly tested his knowledge of the facts testified to by him and further attempted to impeach the witness by showing that he did have knowledge of a previous knife fight between the defendant and another man. It was admissible for these purposes. The second and third grounds of the amended motion are without merit.
3. Special grounds 4 and 5 contend that the court erred in charging the jury in effect that if the defendant believed he was shooting in self-defense "it must appear that the circumstances were sufficient to excite the fear of a reasonable man and that the party shooting really acted from those fears", it being contended that this deprived the defendant of the defense of mistake, and that the court should have charged that the circumstances as they appeared to the defendant must have been sufficient to excite the fears of a reasonable man, and of the defense that it appeared to him that he was acting in self defense, although he might not have been in reality so doing. Grounds 6 and 7 complain of failure to give certain requests in charge setting out this theory, the request in ground 6 being as follows: "I charge you further that if you find that the defendant honestly believed at the time of the shooting that he was in danger of serious bodily harm and that the measures he used were reasonably necessary to prevent that harm, the defendant would be guilty of no crime at all." The basic contention is that one is entitled to the defense of self-defense if he was acting from any fears he might have had and believed himself justified at the time, whereas the court charged that such fears must be those which a reasonable man would entertain under like circumstances.
Code § 26-1012 provides as follows: "A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge." In Malone v. State, 77 Ga. 767 (6), at page 772, it was held that it was not error to refuse a request to charge that the defendant might lawfully have used the knife "if at the time, he believed it necessary to use said knife to protect his person", since such a charge would leave it to the jury to determine only whether the defendant believed that such a state of facts existed, without determining whether such a belief was justified "in the way of reason and sense." The defendant in his drunken state might have honestly believed the unknown persons were threatening his life and thus acted under an honest mistake of fact, but unless the jury could find that his fears were those which a reasonable man under like circumstances might be subject to they would not be authorized to acquit. See Palmour v. State, 116 Ga. 269 ( 42 S.E. 512); Turner v. State, 190 Ga. 316 (2) ( 9 S.E.2d 270); Graham v. State, 143 Ga. 440 (4) ( 85 S.E. 328); Marcus v. State, 149 Ga. 209 (2) ( 99 S.E. 614); Mitchell v. State, 71 Ga. 128 (7); Battle v. State, 103 Ga. 53 (3) ( 29 S.E. 491). The charge as given by the trial court on this subject was sufficiently full and without error.
4. The general grounds are not insisted upon in the brief of counsel for the plaintiff in error and are treated as having been abandoned.
The trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P.J. and Gardner, J., concur.