1. Where competent testimony is excluded in the trial of a case, but later in the examination of the same witness he answers fully concerning the question, the previous error in sustaining an improper objection is cured.
2. Special ground 2 is not meritorious for the reasons given in the opinion.
3. The effect of a charge of a court in a trial for murder that if the jury were satisfied under the evidence, beyond a reasonable doubt, that the defendant killed the deceased by shooting him as charged, is not erroneous where, as here, the court elsewhere in the charge instructed the jury that the indictment embraced the charge of murder, voluntary manslaughter in both its phases, and involuntary manslaughter in both degrees, and further charged as to whether the defendant was guilty of either offense or justified, was a question for them under the evidence, the evidence justifying each of the questions presented by the court to the jury.
4. Viewing the excerpt upon which error is assigned, we find that it is without merit when we read the entire charge under the record in this case.
5. The assignment of error under special ground 5 shows no cause for reversal for the reasons set out in the body of the opinion.
DECIDED JULY 16, 1947. James Wesley Nobles, on a charge of the murder of Richard Lee Maddox, was convicted of voluntary manslaughter by a jury, who fixed his punishment at not less than four or more than five years in the penitentiary. At the same term of court James C. Hand, Young Willis, James W. Franks, Carson E. Sumner, and Ike Jackson were also indicted separately for the same offense, but *Page 470 were not tried at the time or before the trial of the defendant.
The State contends, and we agree, that the evidence would have sustained a verdict for murder. The defendant, through his counsel, admitted that so far as the general grounds are concerned, there is sufficient evidence to sustain the verdict returned. Thus it is that unless the court committed some error in passing upon the admission of testimony or in his charge to the jury, the judgment overruling the amended motion for a new trial should be affirmed, otherwise reversed. The record, consisting of approximately 200 pages, is unusually voluminous. Counsel for both parties agree that since the general grounds are not contested, it is not necessary to set out the evidence in detail, but that it is only beneficial to set forth such evidence as may be pertinent in discussing the special grounds. Counsel deal with the case in this manner, so will this court. It may be, however, well to set forth a brief statement giving a history of the facts as they appear from the evidence and the contentions of either side respectively. It seems that the defendant and those with him on the night of the homicide and who were indicted for the same offense, composed what we shall term the Nobles group. The deceased, Richard Maddox, on the occasion in question, was accompanied by his brother, Edward Maddox, Curtis West, Sam King, and Charles Nipper. These we will designate as the Maddox group. The two groups first met around 12 o'clock at night at a place known as the White Spot, about 11 miles east of Tifton, in Berrien County. When at this place the Maddox group contended that they were approached by the Nobles group, which last group invited the other group to go down the road and a difficulty which had arisen between them would be settled, if the Maddox group would wait.
The Nobles group contended to the contrary that they were invited to settle the difficulty by the Maddox group. However, the evidence discloses that the Maddox group left the place first, shortly after 12 o'clock, went through Tifton, and went to and stopped at a place on another highway about 3 1/2 miles in the direction of Sparks, Georgia. The Maddox group lived at Sparks, Georgia. This group stopped at Bellflower's place, according to the evidence, to obtain sandwiches and soft drinks. The Nobles group, about 30 minutes later, drove up to and stopped at Bellflower's place. At this meeting each group contended that the *Page 471 other group was the aggressor. We think it clearly appears from the evidence that so far as the deceased, Richard Lee Maddox, was concerned, that from the time he arrived at the scene of the homicide, he did nothing more before the fatal shot was fired but hold a bottle in his hand. And it also appears from the evidence that several of both groups were given scratches and cuts.
The State's evidence discloses that the defendant had a shotgun in his hand and in his hands alone at the time of the shooting which resulted in the death of the deceased. The defendant contended that several of both groups were engaged in trying to obtain possession of the shotgun and that the death of the deceased was accidental. The State's evidence shows in this connection that the defendant and his group had stopped at three distinct cafes that were open and inquired as to where they might find the Maddox group. The State's evidence also shows that after a few minutes in which the defendant Nobles and Sam Camp were engaged in a fight, that the defendant left the crowd, went to an automobile and withdrew a shotgun from the automobile and that at this time the deceased was near the right fender of the car when the sudden blast of the shotgun struck, inflicting a wound from which he died soon thereafter. The evidence discloses, in this connection, that the Nobles group, some three miles away from the White Spot, and on their way to the Bellflower place, obtained the shotgun in question from Ike Jackson, it being contended by the Nobles group that this gun was obtained for the purpose of shooting some rabbits. This was the reason given by the defendant in his statement. Later the defense contended that while they gave Ike Jackson that reason for obtaining the gun, that the real reason was that they were afraid of the Maddox group. When the gun was obtained by the brother of the deceased after the shooting, it was unbreached and two empty shells fell from it. The whole evidence discloses that there was but one shot fired at the scene of the homicide. The defense contends that the other shot was fired at a rabbit near the home of Ike Jackson. It appears from the evidence also that the deceased urged his group to leave the White Spot in order to have no trouble and to go to their home at Sparks, Georgia. There is considerable evidence as to the allegation of the cause of the homicide, as well as the incident leading up to the fight and the ultimate homicide *Page 472 of the deceased. After the shooting the deceased was carried to the hospital in Tifton, Georgia, where he died about thirty minutes after arrival.
The State contends that at the scene of the homicide none of the Maddox group accosted the other group or initiated the disturbance. They admit having soft drink bottles in their hands, but that no knives were out; and that the defendant was the apparent leader of the Nobles group, and the defendant's group accosted the group of the deceased. On the other hand the defendant's group contend that they were first attacked with bottles and knives by the Maddox group, but the defendant's group did not know which member of the Maddox group initiated the attack. It also appears that the evidence of both groups shows that neither member of either group knew each other except by description of automobile by which they traveled, and by clothing and physical appearance. It was contended by the defendant that there was a general free-for-all fight between the two groups and certain scratches and wounds were exhibited to the jury.
The court charged the law of murder, voluntary manslaughter, two degrees of involuntary manslaughter, and justifiable homicide. 1. Special ground 1 complains of the admission of testimony, over the objections of the defendant. While Edwin Maddox, a witness for the State, was being cross-examined, counsel for the defendant propounded the following question to him: "Well, about that boy, this one here got a knife wound in the back, didn't he?" The State objected to the admission of this testimony on the ground that it was irrelevant, immaterial, prejudicial and had no bearing on the case. We may concede that this objection at the time it was made, was not good. However, when we look to the whole evidence of the witness, we can not see that it was harmful because the witness later on, in the same cross-examination, testified: "I do not know who or what hit him. I did not testify that I was standing there looking at him. I was sitting there on my car and I did not watch him. I do not know whether anybody else was cut. I do not know who was cut. I wasn't in the fight. I did not know what our crowd had. I did not look in their pockets. I know they had no knives *Page 473 out. They didn't have no knives out. As to me knowing that no one of the defendant's friends who were there with him could have cut him with a knife, I don't know who cut him." The effect of this testimony of the witness is that he did not know who cut James C. Hand, the party having the wound on his head. There appears no reversible error in this ground.
2. Special ground 2 assigns error as follows: "Because, while James C. Hand, a witness sworn for the defendant, was on the witness stand, he was permitted, under the objection of the defendant's counsel, to testify as follows:
"Q. James, this is not the first time that you and James Wesley Nobles have been out on a spree, is it? Defendant's counsel objected to this evidence on the ground that it is irrelevant and immaterial. This objection was overruled by the court and the witness continued his testimony as follows: Q. I will ask you this, this is not the first time you have been involved in a fight is it not, Mr. Hand? A. In a fight? Q. Yes? You went down here to the Colonial Cafe and engaged the proprietress in an argument, did you not? A. No, sir. Defendant's counsel, `objects to witness being asked about any other occasion, on the ground that it is entirely irrelevant and immaterial, and can not have any bearing on the issues in this case, it is an entirely different proposition, is irrelevant and immaterial because it has to do with another occasion, at another time and certainly has no bearing on this case, and can not, in any way, reflect upon or illustrate the issues in this case, and on the further ground that it is not impeaching.' This objection was overruled by the court and the witness continued to testify as follows: Q. All right, answer the question. A. Yes, sir. Q. You went down there and tried to get a room at the Colonial Hotel, didn't you, is that right, just answer the question? A. I don't remember. Q. Were you drunk? A. Yes, sir. Q. You do not remember asking for a room there? A. No. Q. Who was with you, Mr. Hand? A. I don't know. Q. You don't know that? A. No, sir. Q. You do not know who struck that woman down there that run the Colonial Hotel? A. No, sir.
"Movant contends that the court committed error in overruling the objections made to this evidence and permitting the same in evidence to the jury on the ground stated in such objection and *Page 474 says that such objection should have been sustained and the evidence excluded.
"At a later time in the trial, the defendant offered evidence for the purpose of showing that on some previous occasion, the deceased had caused a disturbance at a party held in the neighborhood which resulted in a fight. This evidence was objected to by the State's attorney and the objection sustained. The objection made by the State's counsel was that the `defendant is trying to introduce the character of the deceased and the prosecutor and this is the proper way — he can not do it by specific instances. He can not impeach a witness in this manner.'
"In discussing this objection reference was made to the objection which had previously been made to the above quoted evidence of James Hand and the court then made this statement:
"`I have reversed that ruling, if I made any such ruling this morning, and I now instruct the jury that, in regard to the questions asked by Mr. Mitchell, that is, as to James C. Hand — if he did not do such a thing, at such and such a time, all that is withdrawn — anything the witness, James C. Hand, may have answered to the questions propounded is now withdrawn from your consideration, gentlemen.'
"This was not sufficient to withdraw the evidence of James C. Hand from the jury because the court used this language: `I have reversed that ruling if I made any such ruling.'
"Movant contends that this did not have the effect of unqualifiedly withdrawing the objectionable evidence of James C. Hand because it was qualified with the statement, `if I made any such ruling this morning.'"
We have no hesitancy in stating that the evidence as set out in this ground was inadmissible. We are of the opinion, however, that under the record of this case the court corrected the error, if any there was, under the assignment general in its nature.
3. Special ground 3 complains of the following excerpt from the charge of the court: "If, after careful consideration of all of the evidence in this case, you are satisfied beyond a reasonable doubt that on the occasion under investigation, the defendant named in this indictment and now on trial did then and there kill the deceased named in this indictment by then and there shooting him as charged, it would be your duty to find him guilty *Page 475 and, in that event, the form of your verdict would be: `We, the jury, find the defendant guilty.'"
We find no vice in this excerpt from the charge, even standing alone. It will be observed that when the court used the words "as charged" he limited the conviction of the defendant to the evidence beyond a reasonable doubt as charged in the indictment. Certainly these words called to the jury's attention that the State must prove beyond a reasonable doubt every charge in the indictment. The court charged on the presumption of innocence, as well as the burden of proof, murder, voluntary manslaughter in both of its phases, voluntary manslaughter in its two degrees, accident, and justifiable homicide, and stated to the jury very clearly and plainly that these offenses, when embraced within the indictment, and the evidence adduced, brought into issue all of these offenses as well as the defense of the defendant, and stated that it was for the jury to determine, under the indictment and the evidence, the guilt or innocence of the accused. We can not comprehend how the court could have made the issues plainer under this excerpt as well as the whole charge.
4. Special ground 4: Error is assigned upon the following charge of the court: "In considering whether the defendant is guilty of murder, I charge you that, unless the State establishes to the satisfaction of the jury beyond a reasonable doubt that the defendant, with malice aforethought, either express or implied, did kill and murder the deceased you would not be authorized to convict him for murder. That I believe I covered in part at least in another portion of my instructions. And, while you may consider any prior threats or statement made in connection therewith by the defendant, such threats or statements, if made, would not alone authorize a conviction, and, if you find that there was a meeting of the parties later and death resulted to Richard Lee Maddox, — if you find that the deceased alone or in company with others became the aggressor and the conduct of the deceased of [or] such others was sufficient to justify the fears of a reasonable man that his life was in danger or that an injury amounting to a felony was about to be committed upon him he could not be convicted of murder."
In this particular excerpt from the charge of the court, the court was at that time dealing specifically with the charge of *Page 476 murder. Elsewhere in the charge the court fully covered the lower grades of homicide which were embraced within the indictment and applicable under the evidence, as well as justification on the part of the defendant both under the principle of reasonable fears and an actual unlawful assault on the part of the deceased on the defendant, wherein the defendant would be justified in taking the life of the deceased. When we view the charge as a whole under the facts of this case, this ground is not meritorious.
5. Special ground 5 assigns error on the ground that after the court had submitted its charge to the jury and they retired for a consideration of the case, the jury returned for further instruction. The foreman stated that there were some questions they would like to have answered and that these questions were in regard to voluntary manslaughter and involuntary manslaughter. The court then stated to them that he could better answer their questions by referring them to the Code sections which the court had used in his original charge. The court stated that the first portion he had submitted to them was voluntary manslaughter. The court then proceeded to instruct the jury fully as to voluntary manslaughter under the Code, § 26-1007. The court then inquired of the jury if there was any other information that they desired on the question of voluntary manslaughter. Neither the foreman nor any member thereof made any response. The court then said, "if not, we will turn to involuntary manslaughter." The court then charged involuntary manslaughter in the commission of an unlawful act as well as manslaughter in the commission of a lawful act without due caution and circumspection. The court then inquired of the jury: "Do you get the distinction now?" The foreman answered, "Yes, sir." Error is assigned on this recharge because it is claimed that the court in its original charge submitted the principle of voluntary manslaughter as applied to mutual combat, this recharge withdrew from the jury the principle of voluntary manslaughter as applied to mutual combat. It is our opinion that the court was not obliged to charge the principle of voluntary manslaughter as applied to mutual combat in the first instance without a written request to do so, since he did charge the law of voluntary manslaughter under the general Code section. It will be discerned, when we read the original charge and the additional charge, that nothing appears inconsistent *Page 477 in that and it would further appear from the colloquy between the court and the jury, after they had requested a recharge, that the principles of law which were then giving the jury concern were fully cleared up and made plain to them by the recharge. Otherwise certainly the jury, composed of intelligent men, would have informed the judge that they were concerned about that phase of voluntary manslaughter as applied to mutual combat. While it might have been a little clearer and more explanatory of the original charge to have gone into a repetition of the law as applied to mutual combat in the recharge, we can not reach the conclusion, under the record of this case, that a failure to do so demands a reversal. We think the original charge was painstakingly clear on all issues under the indictment and the evidence, and we cannot reach the conclusion that the error complained of here is cause for reversal. See, in this connection, White v. State, 74 Ga. App. 634 (40 S.E.2d 782); Lester v. State, 75 Ga. App. 42 (42 S.E.2d 141);Wingate v. State, 68 Ga. App. 265 (22 S.E.2d 758). The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.