Bruno v. The State

Supreme Court of Georgia1939-10-10No. No. 13033

189 Ga. 74

Summary · law.co

Holding. The judgment of conviction was affirmed because the ballistic evidence and confession supported the guilty verdict, any error in admitting expert opinion was cured by judicial instruction to disregard it, and the jury instructions on accomplice liability were legally correct under state law.

Bruno was convicted of murder based on multiple forms of evidence, including his confession to participating in an armed robbery and testimony from a ballistic expert linking discharged shotgun shells found at the scene to a stolen firearm in Bruno's possession. During trial, the expert initially testified it was an "established fact" that the shells came from Bruno's shotgun, but the trial court subsequently struck this testimony as improper opinion and instructed the jury to disregard it. The court determined this curative instruction adequately remedied any error in admitting the problematic testimony.

Bruno also challenged the jury instructions on accomplice liability, which allowed him to be treated as the sole perpetrator despite evidence suggesting another armed individual fired the fatal shot. The court upheld these instructions, finding them proper under state law governing principals in the first and second degree, since Bruno's own confession established he acted jointly with another person in the robbery, even though the other person discharged the weapon.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Admissibility and cure of expert testimony improperly framed as established fact
Sufficiency of evidence to support murder conviction
Propriety of jury instructions on principal and accomplice liability
Whether curative jury instruction eliminates prejudice from erroneous admission of evidence

Procedural posture

Bruno appealed his murder conviction, raising exceptions to the trial court's evidentiary rulings and jury instructions.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jbnexns, Justice.

1. The verdict of guilt of murder was authorized not only by testimony as to confessions by the defendant, but by expert and other testimony that two discharged shotgun shells, found at the scene of the homicide from shotgun wounds, had been fired by a stolen shotgun which both before and after the killing was in the possession of the defendant.

2. “Where certain evidence is admitted, but subsequently the judge rules it out, and so informs the jury, and instructs them that they should not consider it in arriving at their verdict, as a general rule this will not require a new trial.” Buchanan v. State, 137 Ga. 774 (74 S. E. 536). Accordingly, even if, as contended, there was any error in the admission, or if its admission amounted to an expression of opinion by the court, in merely overruling an objection and admitting testimony of a ballistic expert that it was “an established fact” that the discharged shells had been fired in the shotgun traced into the possession of the defendant, over the stated objection that “such was a question to be determined by the jury from the evidence,” the effect of any such error was sufficiently removed where, after further examination of the witness, the court allowed the solicitor-general to withdraw the testimony, and then stated to the jury: “You will disregard the question which the solicitor propounded to the witness, in which he asked if it was an established fact, and the witness testified it was. That is incompetent evidence, and it is not proper for you to consider the question and answer, and you will exclude that from your mind.”

3. “Where a crime capable of being committed by one person alone is . . committed by two persons acting jointly and with a common purpose, one as principal in the first degree and the other as principal in the second degree, the offenders may be indicted either jointly or separately; and where the principal in the second degree is indicted separately, he may be treated in the indictment as if he were the absolute and sole perpetrator of the crime, no reference therein to any other participant in the crime being necessary; and where so indicted, the principal in the second degree may be convicted upon proof alone that he was present actually or constructively at the scene of the crime, aiding and abetting its commission by his confederate, who was the actual perpetrator.” Hatcher v. State, 176 Ga. 454, 465 (168 S. E. 278), and cit.; Nelson v. State, 187 Ga. 576 (2), 580 (1 S. E. 2d, 641), and cit.; Kettles v. State, 145 Ga. 6, 7 (88 S. E. 197) ; Johnson v. State, 151 Ga. 21 (2) (105 S. E. 603), and cit.; Id., 148 Ga. 546 (2) (97 S. E. 515) ; Bullard v. State, 34 Ga. App. 198, 200 (128 S. E. 920). Under testimony as to a confession by the defendant that he and another person who was armed with a shotgun together held up the deceased and robbed her of money, and that, although the other person fired the fatal shot, the defendant told the deceased “to stick up,” the court did not err in charging to the jury the rules of law as to principals in the first and the second degree in the language of the Code, § 26-501.

4. On these, the sole exceptions, the court did not err in refusing a new trial. Judgment affirmed.

All the Justices concur.

Howell Cobb, for plaintiff in error.

Ellis G. Arnall, attorney-general, Carl E. Crow, solicitor-general, B. B. Williamson, Duke Davis and C. E. Gregory Jr., assistant attorneys-general, contra.