Johnson v. State

62 S.E.2d 837, 82 Ga. App. 840, 1950 Ga. App. LEXIS 1220

• Court: Court of Appeals of Georgia
• Decided: September 19, 1950
• Docket: 33027
• Status: Published

Opinions

MacIntyre, P.J.

The defendant, Henry J. Johnson, was in-dieted for assault with intent to murder. Upon the trial the jury returned a verdict finding him guilty as charged and fixed his punishment at not less than two years and not more than three years in the penitentiary. The defendant’s motion for a new trial, based upon the usual general grounds and one special ground, was overruled and he excepted.

Under one phase of the evidence and the defendant’s statement to the jury, the jury was authorized to find that H. C. Hammond, a policeman of the City of Atlanta, had arrested the defendant for a criminal violation of an ordinance of the City of Atlanta, and after he had put the defendant in the rear seat of the patrol car, he turned his car around and drove back towards Lee Street. He started off driving at about fifteen miles per hour and had driven about a quarter of a block before he was cut, and that it was the defendant who cut him with a knife. When he was cut he was looking straight ahead and felt the defendant’s arm drag across his head. The cut began in the corner of his left eye and came up half-way across his nose and that when he awoke in the hospital some time later he had a sore spot on the back of his head, but he could remember exactly what had happened up until the time he was cut in the eye. He was dazed after the knife went into his left eye and did not remember getting out of the car and only knew that he was stabbed with some kind of knife. The jury was also authorized to find that, at the time Hammond arrested the defendant, he ran his hands over his body and over his clothes to see whether or not he had any weapons; that he did not put his hands inside the defendant’s pockets; that he kind of felt of him slightly and did not search him thoroughly and did not find any weapons; and he-told the defendant to get in the back seat of the patrol car and that Hammond never laid his hands upon the defendant before he was cut except to search him and then to put him in the car. Other phases of the evidence were that almost immediately after the cutting of the officer, he was bleeding profusely below his left eye when other officers and other persons, not officers, arrived on the scene. The knife with the tip of the blade broken off was introduced in evidence after it was identified as the one found in the patrol car immediately after the cutting or stabbing in question. Applying the rule that “in determing whether the offense was an assault with intent to murder, or shooting at another, it is the prerogative of the jury to believe certain parts only of the defendant’s statement and to combine those parts with certain parts only of the evidence” (Shanks v. State, 80 Ga. App. 759(5), 57 S. E. 2d, 357), to the evidence and the defendant’s statement in the instant case, the verdict finding the defendant guilty of assault with intent to murder was authorized.

The policeman upon whom it was alleged the assault was made testified: “I have ten percent vision left in my left eye.” The defendant objected to this testimony on the ground that it was obviously hearsay and called for the opinion of a specialist, a competent witness, rather than the testimony or conclusion or opinion of a lay witness who had not been properly qualified to give such an opinion. This testimony objected to did not violate the rule against opinion evidence nor was it necessary that this evidence should have come from a specialist or expert. One thing the witness, Hammond, knew, that whereas he could see before he was cut in the eye, at the time of the trial he was practically blind (90% blind) in his left eye and he could testify to this loss of vision as a fact just as the man who had been born blind, after being cured by Jesus and upon being questioned by the Pharisees as to the means by which his sight had been bestowed upon him, said: “One thing I know, that, whereas I was blind, now I see.” John 9:25. There was no question of skill or science in this case and consequently the witness was not called upon for an opinion upon facts proved by other witnesses. He gave his own opinion upon facts sworn to by himself as to the extent of his blindness and he was competent to do this, as showing a circumstance along with other circumstances which all together would tend to show that the knife as used was a dangerous weapon and one likely to produce death and that the defendant intended criminally to kill. McLain v. State, 71 Ga. 279(4), 284; Pinson v. State, 184 Ga. 333 (191 S. E. 95); Atlanta & West Point R. Co. v. Haralson, 133 Ga. 231 (1) (65 S. E. 437); Southern Railway Co. v. Dean, 128 Ga. 366 (4) (57 S. E. 702); New York Life Ins. Co. v. Bradford, 57 Ga. App. 657(3), 664 (196 S. E. 92); Southern Railway Co. v. Tankersley, 3 Ga. App. 548 (60 S. E. 297). This evidence was not objectionable as being hearsay, and the court did not err in refusing to strike it from the record.

The court did not err in overruling the motion for a new trial for any reason assigned.

Judgment affirmed.

Gardner and Townsend, JJ., concur.