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Lawskills.com Georgia Caselaw
WYATT, alias JORDAN, v. THE STATE.
16961.
Murder. Before Judge Guess. DeKalb Superior Court. November 8, 1949.
CANDLER, Justice.
1. The general grounds of the motion for new trial are not insisted on. However, it is apparent from an examination of the record that the verdict is amply supported by evidence.
2. The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him. Code, 38-1705. (a) When the accused relies upon the benefit of a witness's opinion on an issue of fact involved in his case, he will not be heard to withhold from the jury the facts upon which the opinion is founded, even though the facts when disclosed tend to discredit his character, which has not been otherwise placed in issue.
3. Where the trial judge by his general charge presents to the jury the principles of law governing the substantial and controlling issues involved in a case, his failure or omission to charge upon incidental or collateral questions, to which his attention has not been called at the Jesse Wyatt, alias Jesse Jordan, was indicted in DeKalb County for murder. He filed a plea of not guilty. The jury convicted him without recommendation, and he was sentenced to death by electrocution. A motion for new trial was made, which, after being amended by adding two special grounds, was overruled. The exception is to that judgment.
The witness also testified that the accused had given him a very long incoherent account of his past life which was very fantastic, but not real, and in which he could place no credence. On cross-examination, the solicitor-general asked the witness this question, "What else did he tell you about other trouble he had?" An objection to this was made upon the ground that the State was undertaking to attack the character of the accused when he had not previously placed it in issue. The court retired the jury, and after hearing from counsel for both parties made this ruling: "Well, the court doesn't propose to admit this evidence as a means of introducing the character of the defendant. The court is of the opinion that the law would not be so narrow that the defendant could go out and employ a doctor to make an examination of his mind to see whether or not he is sane or insane, and be allowed to put his witness on the stand before the jury and testify just the parts he wants testified to without the right of the State asking the doctor all of the facts about his examination of the defendant. As I say, as this is evidence that tends to show the state of mind and the sanity of this defendant and not a question of introducing his bad character in the general and accepted terms, the court is allowing it for the sole reason, and the court will so charge the jury, that the doctor is allowed to testify just what his examination consisted of and just what the defendant told him in the examination." The jury was then returned to the box and the witness then answered the question propounded by saying: "As to what all else he told me about his troubles that he had had: he stated that he had been in trouble previously, that he served a sentence back in 1931. He stated he had been convicted of a murder charge in 1931, that he had shot a brother-in-law in self-defense, that he had served on the sentence until 1939, and that he was paroled at that time; that while out on parole he was arrested for shooting off a gun in the city limits; he stated that he was cleaning the gun and put some shells in it, and that one of them had accidentally gone off, that he was returned to prison as a violator, and that he remained in prison until 1947 when the parole board granted him a parole. He stated that he had served two life sentences, but mentioned only the one shooting, which was in 1931. He told me about being released in 1947 the second time. I did not check up to find out if any of those things were true." In rebuttal, the State introduced a number of witnesses, who after stating the facts upon which they based it, testified that the defendant, in their opinion, was sane at the time of the killing, and that he knew the difference between right and wrong with reference to the offense charged against him.
(After stating the foregoing facts.) 1. The general grounds of the motion for new trial are not argued in the brief for the plaintiff in error or otherwise insisted upon, but, after carefully examining the record, we find and hold that the verdict is amply supported by evidence.
2. The first ground of the amended motion for new trial alleges that the court erred in allowing the defendant's witness, Dr. Lipton, to testify on cross-examination what the accused had said to him about another homicide, for which he had previously been convicted of murder and for which he had served a term in the penitentiary. As shown by our statement of the facts, this testimony was objected to by counsel for the defendant on the ground that it was an attack upon the defendant's character when he had not himself placed it in issue. There is no merit in this. The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him. Code, 38-1705; Pulliam v. State, 196 Ga. 782 (28 S. E. 2d, 139); Post v. State, 201 Ga. 81 (39 S. E. 2d, 1). In the present case, Dr. Lipton's opinion as to the mental status of the accused at the time of the homicide was based entirely upon a mental examination which the witness had given him; and it is too Bell settled in this State to be doubted or questioned that the jury was entitled to know all of the facts upon which his opinion vested, and it is elementary that the State had a right to bring these facts out on cross-examination. Betts v. State, 66 Ga. 508; Cox v. State, 64 Ga. 374 (8), 376 (37 Am. R. 76); Glasco v. State, 137 Ga. 336 (73 S. E. 578). And the fact that the evidence objected to tended to discredit the character of the accused made it none the less admissible, where, as in this case, it was otherwise relevant. Clifton v. State, 187 Ga. 502 (2 S. E. 2d, 102). In other words, it is settled that a defendant in a criminal case who relies upon the benefit of a witness's opinion upon an issue of fact involved in his case will not be heard to withhold from the jury the facts upon which the opinion is founded, even though the facts when disclosed tend to discredit his character, which has not otherwise been placed in issue.
3. The other ground of the amended motion alleges that the trial judge, after allowing Dr. Lipton to testify on cross-examination to the facts referred to in the preceding division, should have instructed the jury as to the limited purpose for which the evidence was admitted and could be considered, and that his failure to do so was error. We do not agree. No contention is here made that the judge did not fully and correctly instruct the jury upon all of the substantial and controlling principles of law applicable to the movant's case; and, in the absence, as here, of a timely written request therefor, a failure or omission to charge upon such an incidental or collateral matter as the one here complained of is not ground for a new trial. Code, 81-1101; Smith v. Page, 72 Ga. 544; Thomas v. State, 95 Ga. 484 (22 S. E. 315); Tuggle v. State, 113 Ga. 272 (38 S. E. 830); Wrightsville & Tennille R. Co. v. Lattimore, 118 Ga. 581 (45 S. E. 453); Davis v. State, 153 Ga. 154 (112 S. E. 280). In the Wrightsville & Tennille Railroad Co. case, supra, Mr. Justice Lamar, who prepared the opinion for the court, said: "There is a difference between issue and evidence, and the requirement that the judge shall instruct the jury as to all of the issues raised does not impose on him the duty of singling out particular portions of the evidence and charging thereon." And a ruling in this case different from the one which we have made is not required because the judge had previously stated during the that that he would instruct the jury upon the subject here complained about; this is true for the reason that it is always the duty of counsel to assist the court in the function of instructing the jury and to remind him of matters which have arisen on the trial which have by oversight escaped his attention. Wheeless v. State, 92 Ga. 19 (18 S. E. 303). A party can not abide the chance of a favorable verdict, and after the return of an adverse one have it set aside upon a ground which doubtless would not have occurred had he himself been diligent. Trussell v. State, 181 Ga. 424 (182 S. E. 514), and the cases there cited.
It therefore follows from what has been held in the three preceding divisions that the court did not err, for any reason assigned, in rendering the judgment complained of.
WYATT, J. I dissent from the rulings contained in divisions 2 and 3 of the opinion and from the judgment of affirmance.
Eugene Cook, Attorney-General, Roy Leathers, Solicitor-General, Frank B. Stow, Assistant Attorney-General, and Robert E. Andrews, contra.
J. Oscar Mitchell and William E. Zachary, for plaintiff in error.
time, is not ground for a new trial; it being the duty of counsel to assist the court in the function of instructing the jury. FEBRUARY 14, 1950. REHEARING DENIED MARCH 15, 1950.
Saturday May 23 06:22 EDT


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