Hixon v. State

61 S.E. 14, 130 Ga. 479, 1908 Ga. LEXIS 320

• Court: Supreme Court of Georgia
• Decided: April 14, 1908
• Status: Published

Opinion

Holden, J.

(After stating the facts as above.)

Upon the trial of the case, the defendant’s counsel objected to-the following testimony of George Brown: “Two places were-pointed out to me where he was struck, one.on the Pike side above the bridge, I suppose 200 yards. There was a place where NannieChunn said it was over there. At the south of the branch, close-to where she said Emmett killed Joe. Said where he was struck was close up there to the south of the branch, and the boat paddles, were just across the branch, both of them. From the way sha talked, it was between 30 and 50 yards.” The objection was that this testimony was hearsay; and complaint is made that the court committed error in overruling this objection. Before George Brown delivered the testimony objected to, Nannie Chunn testified about having made statements in George Brown’s presence, and her testimony in regard to these statements was admitted without objection and remained before the jury. • The statements which she testified she made were not in detail exactly the same as the statements testified to by George Brown as having been made by her to him, but, in view of all the other testimony in the case, their meaning was substantially the same. The same is true of other testimony of George Brown as to statements made by Nannie Chunn, which was not objected to and remained before the jury. The statements made by Nannie Chunn, as detailed in this other testimony of George Brown, were not exactly the same as the statements embraced in his testimony objected to, but, in the light of all the testimony, had substantially the same meaning. No motion was made to rule out the testimony of Nannie Chunn, or this other testimony of George Brown; and in view of this testimony going to and remaining before the jury without objection, and in view of the further fact that at the titfte the testimony objected to was admitted, the court made the following statement, “I let it in only to locate how far the body was from some particular point; that evidence is not for the purpose of showing what the woman said wasi true,” we do not think that the action of the court, in allowing the testimony to which objection was made to remain before the jury, was a sufficient ground upon which to set aside the verdict. Payne v. Miller, 89 Ga. 73 (14 S. E. 926) ; Cox v. State, 64 Ga. 374 (37 Am. R. 76) ; Bailey v. Ogden, 75 Ga. 874; Lovett v. State, 60 Ga. 257 ; O’Shields v. State, 55 Ga. 696 ; Harrison v. State, 125 Ga. 267 (53 S. E. 958) ; Summerford v. Davenport, 126 Ga. 153 (54 S. E. 1025) ; Daughtry v. Savannah R. Co., 1 Ga. App. 393 (58 S. E. 230).

2. Complaint is made that the court committed error in allowing, over defendant’s objections, the following testimony of George Brown: “He came to me and wanted to leave. He came to me two or three times. Wanted to leave. Wanted to run away from here. Of course he owed me money, and I told him, ‘You stay on here. If you run off they will catch you if you done it, and if you didn’t do it and run away, they will catch you.’ He also wanted to leave again. He waked me up one morning, the morning they accused Ben Tucker of doing this act. He came to me and wanted to leave.” This court has several times decided that flight of the party suspected or charged with the commission of a crime may be admitted in evidence against him, upon his trial for the commission of such'crime, and we see no reason why a:i expression of a desire to flee would not likewise be admissible. Any statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of the crime, is admissible against hini upon his trial for committing it. Whaley v. State, 11 Ga. 123 ; McRae v. State, 71 Ga. 96 ; Grant v. State, 122 Ga. 740 (50 S. E. 946).

3. Error is assigned on the admission, over the defendant’s objections, of the following testimony of a witness for the State: “Joe and Nannie was standing there at Carrie Brown’s house talking, and Emmett walked up, and Joe says, ‘Hush! don’t say nothing. Don’t you see that man walking around here with a p'istol in his pocket?’ Emmett walked across to Carrie Brown’s house-and says, ‘Going to kill some damn son of a bitch before Christmas.’ ” Immediately preceding this testimony, the witness testified as follows: “I heard'Emmett say the first of the year him and Joe had some few words.” It does not appear from the testimony when the threat referred to was made, but, taking all of her testimony together, it would seem to indicate that the threat was made the first of the year; which would make the issuance of the threat several months prior to the cbinmission of the homicide. If the threat was made, however, several months before the homicide, this fact would not make it inadmissible because of being remote in point of time. Keener v. State, 18 Ga. 194 (63 Am. D. 269) ; Everett v. State, 62 Ga. 65 ; McDaniel v. State, 100 Ga. 67 (27 S. E. 158) ; Gordon v. State, 125 Ga. 48 (53 S. E. 816). It does not clearly appear against whom the threat was uttered, but the testimony indicates that it was directed against'Joe Reynolds, with whose murder the defendant is now charged. It does not appear that any one was present at the time the threat was made, except the witness Mary Harris, the deceased, the defendant, and Nannie Chunn; and there is evidence that the deceased and the defendant were both visiting Nannie Chunn. The threat was made just after Joe Reynolds made a remark which apparently referred to the defendant. There is nothing in the testimony .to indicate that the threat was uttered against any person other than the deceased; and we think the testimony was clearly admissible, to be given such weight and consideration as might be thought proper by the jury. Harris v. State, 109 Ga. 280 (34 S. E. 583) ; Warrick v. State, 125 Ga. 133 (53 S. E. 1027).

4. The evidence was sufficient to warrant the verdict, and the court did not abuse its discretion in refusing to grant a new trial. No good reason appears why the judgment overruling the motion for a new trial should be disturbed, and the judgment of the court below is Affirmed.

All the Justices concur.