Hudson v. State

295 S.E.2d 123, 163 Ga. App. 845, 1982 Ga. App. LEXIS 2675
CourtCourt of Appeals of Georgia
DecidedSeptember 9, 1982
Docket64010
StatusPublished
Cited by18 cases

This text of 295 S.E.2d 123 (Hudson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hudson v. State, 295 S.E.2d 123, 163 Ga. App. 845, 1982 Ga. App. LEXIS 2675 (Ga. Ct. App. 1982).

Opinions

Deen, Presiding Judge.

The defendant was indicted for murder and convicted of manslaughter in the shooting death of her husband. She did not deny the shooting, which she explained at the time resulted from fear and in self-defense, he having beaten her and threatened her life.

1. The defendant attacked the admission of her oral statements on the ground they were not voluntary. Two peace officers, however, testified that they had given her the required Miranda warnings, and no question of the sufficiency of these was raised at the Jackson-Denno hearing. The question cannot of course be raised for the first time on appeal. Pressley v. State, 158 Ga. App. 638, 639 (281 SE2d 364) (1981). In any event, although there is some discrepancy in the trial transcript as to exactly what was said, which arises from the apparently faulty recollection of the officers during their testimony, this question is one of credibility addressing itself to the trier of fact. When the testimony of both officers is considered it is apparent that the defendant was in fact fully informed.

2. Appellant contends the court erred in failing to rebuke counsel for the state when he analogized this homicide to the Atlanta child killings. We have no record of what was said by counsel or what objection was made, and therefore cannot consider this enumeration. McCallum v. State, 155 Ga. App. 540 (271 SE2d 749) (1980).

3. The requests to charge on the subjects of justification and self-defense were sufficiently covered in the general charge. Crawford v. State, 236 Ga. 491, 493 (224 SE2d 365) (1970). Insofar as Witt v. State, 231 Ga. 4 (200 SE2d 112) (1973) is concerned, the error inherent in the instructions in that case did not occur here as the court specifically instructed the jury to acquit if they should believe the killing was justifiable in self-defense. Enumerations 3 and 4 are without merit.

4. The remaining enumeration of error charges that the trial court erred in striking the testimony of a witness to the good character of the defendant. We quote from the state’s brief the excellent summary of the law in this area: “The general rule in Georgia is that evidence of the character of the defendant is irrelevant and immaterial upon the trial of the case. Ga. Code Ann. § 38-202. The defendant may place his character in evidence by testimony as to his reputation in the community in which he lives. Freeman v. State, 132 Ga. App. 742, 745 (1974). It is well settled law that it is the defendant’s reputation in the community which is relevant and not the personal opinion of the witness. Lynn v. State, 140 Ga. 387, 395. Where a character witness states that his [846]*846information as to the reputation is from personal knowledge the court should exclude the testimony. Id. The essence of this rule is that the witness must testify to the reputation as it is perceived by the community and not as it is perceived by the witness.”

It thus appears that evidence of good (or bad) character runs counter to the general rule of evidence for the proof of facts, which general rule is that it must be the knowledge of the witness and not merely hearsay. For example, where the issue is the mental condition of another, opinion evidence is proper (Jarrard v. State, 206 Ga. 112 (3) (55 SE2d 706) (1949)) but evidence of his reputation in the community for sanity or insanity is not. Choice v. State, 31 Ga. 424, 470 (7) (1860). Yet where the issue is good or bad character the quality of evidence to be adduced is the precise opposite. This rule was decried in Simpkins v. State, 149 Ga. App. 763 (256 SE2d 63) (1979), causing William B. Daniel, the author of Georgia Criminal Trial Practice, (1977 ed.), § 21-11, n. 7.2,1980 Supp., to comment on that case: “In this excellent opinion of Presiding Judge Quillian he stated that the rule applied is not sound.” Judge Quillian’s decision discusses Professor Wigmore’s history of “ensuing evolution” of the rule and approves but factually distinguishes Gravitt v. State, 220 Ga. 781, 786 (8) (141 SE2d 893) (1965), which he indicated is the better rule. In Gravitt the witness on direct examination answered the statutory questions to the effect that he was acquainted with the defendant’s character and reputation in the community and “what I know is good.” On cross examination he was asked: “In fact, you’ve never heard anybody say anything good about him, you have not heard, period, have you?” and he replied, “Well, that’s true. I know myself.” The Supreme Court held that ruling out the testimony of the character witness was reversible error. “ ‘The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.’ Code § 38-1805. ‘Ordinarily ... mere contradictions or ambiguities in the testimony of one who is not a party to the case do not require a rejection of his entire testimony, but the truth is to be determined by the jury.’ Wallis v. Watson, 184 Ga. 38, 40 (190 SE 360). If, under the entire testimony of each of these witnesses, it had appeared that his testimony as to the character and reputation of the defendant was based entirely on his personal opinion, the trial judge could properly have excluded his testimony. Since these witnesses testified on direct examination that they were acquainted with the character and reputation of the defendant and it was good, even though they made contradictory statements on cross examination as to the basis of their testimony, the trial judge in excluding their testimony was asserting the right to determine the credibility of these witnesses, a right belonging only to the jury. This court has no way of [847]*847knowing whether the improper exclusion of the testimony of these two witnesses as to the good character of the defendant may have affected the verdict, and we must reverse ...” (Emphasis supplied.) Gravitt v. State, 220 Ga. 781, 787, supra. That this is the sounder rule is pointed out in Simpkins, supra, as having the approval of Wigmore on Evidence, § 1986, McCormick on Evidence, § 158, and other recognized authorities. “It is inexplicable that we proclaim in legislation ‘[t]hat the object of legal investigation is the discovery of the truth’... but in practice, we exalt rumor, gossip, and hearsay over personal knowledge of the witness.” Id., p. 765.

In the case at hand it is obvious that the facts in Gravitt are closer to the actual situation than were those of Simpkins, and we follow it the more willingly in the assurance that Simpkins was felt by its authors to have reached an unjust conclusion. In the case at bar the witness, called to the stand by the defense, answered in response to the statutory questions (see Code § 38-1804) that she knew the defendant, was familiar with her general reputation in the community for peaceableness and violence, had an opinion as to what that reputation would be and it would be peaceable. On cross examination over objection of defense counsel the witness was asked, “If you knew that she had had fights with this fellow regularly all the time would your idea of her reputation change?” and defense counsel, with the court’s permission, then interposed a continuing objection to such line of questioning. The objection was overruled, the request to treat it as continuing was granted, and the following questions were interposed by the state: “Q. If you knew ...

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Hudson v. State
295 S.E.2d 123 (Court of Appeals of Georgia, 1982)

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Bluebook (online)
295 S.E.2d 123, 163 Ga. App. 845, 1982 Ga. App. LEXIS 2675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudson-v-state-gactapp-1982.