Holcomb v. State, 48524

• Decision Date: 15 October 1973
• Docket Number: No. 1,No. 48524,48524,1
• Citation: 202 S.E.2d 529,130 Ga.App. 154
• Parties: Harold S. HOLCOMB v. The STATE
• Court: Georgia Court of Appeals

Page 529

202 S.E.2d 529

130 Ga.App. 154

Harold S. HOLCOMB v. The STATE.

No. 48524.

Court of Appeals of Georgia, Division No. 1.

Oct. 15, 1973.

Rehearing Denied Oct. 31, 1973.

Syllabus by the Court

1. Where a witness volunteers prejudicial remarks not directly elicited by counsel for the state, it is the duty of the court on objection made to take whatever action is necessary, either to remove the objectionable matter from the jury's mind or to grant a mistrial. The corrective measures here taken were adequate.

2. Photographs of the deceased illustrating the cause of death are ordinarily admissible in evidence.

3. The court did not err in instructing the jury on the law of confessions, leaving it to them to determine whether the pre-indictment statement of the defendant in fact amounted to a confession.

4. Ordinarily it is not error to allow the taking of notes by jurors during the trial.

5. The court properly refused to charge on the various grades of involuntary manslaughter.

6. The court in charging in a murder case on the defense of justifiable homicide must inform the jury that if they believe the defendant to have been justified in killing the victim it would be their duty to acquit him.

After an altercation between the defendant Holcomb and the deceased Burroughs in a beer tavern Holcomb left and, following an unsuccessful attempt on his part to take out a warrant against Burroughs, he returned during the evening with his wife and with his wife's pistol in his pocket. This time he was refused admittance on the ground that Burroughs was still inside. While he was discussing the matter Burroughs came out. According to some of the testimony, Holcomb then drew his pistol on Burroughs, while pushing his wife out of the way; Burroughs went over and unsuccessfully attempted to take his gun arm, and Holcomb shot once, the bullet entering Burroughs' chest. The wounded man and his friends reentered the building and Burroughs later died; Holcomb and his wife went home, where he was found and arrested by the sheriff. There was considerable testimony concerning previous altercations and bad blood between the men. Holcomb was indicted and tried for murder and convicted of voluntary manslaughter, from which judgment he appeals.

William O. Carter, Hartwell, for appellant.

Harry N. Gordon, Dist. Atty., B. Thomas Cook, David Betts, David Rogers, Athens, for appellee.

DEEN, Judge.

1. A witness for the state volunteered the following testimony: 'Harold Holcomb was standing there at the bar and he said, 'Someone as sorry as Rudy ought to be killed.' He said, 'What is the matter with Rudy?' I said, 'I don't know what you are talking about.' Somehow he thought Rudy told his Probation Officer. . . .' At this point a motion for mistrial was made which the court, after cautioning the jury at some length, overruled. The remark was not elicited by the prosecution but volunteered by the witness, and the court was scrupulously fair in attempting to disabuse the jury's minds of any remark calculated to put the defendant's character in issue. The statement itself was ambiguous since 'his probation officer' could have referred either to Holcomb or Burroughs. Motions for mistrial are largely in the discretion of the trial judge, especially where the cause of the motion lies in the voluntary remark of a witness not invited by the court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court's discretion will not be overturned. Hooks v. State, 101 Ga.App. 351, 114 S.E.2d 48; Hollis v. State, 97 Ga.App. 145, 102 S.E.2d 610; Johnson v. State, 113 Ga.App. 361, 141 S.E.2d 186; Jones v. State, 226 Ga. 747(2), 177 S.E.2d 231.

2. Where photographs of a deceased are not spectacularly gruesome, and where they do clearly indicate the cause of death, it is well settled in this state that they are admissible in evidence. Bryan v. State, 206 Ga. 73, 55 S.E. 574; Henderson v. State, 227 Ga. 68, 179 S.E.2d 76. Where, as here, the cause of death is not in dispute, and the defendant admits to having fired the fatal bullet, a trial judge would often be well advised to sustain an objection to their admissibility on the ground that they add nothing of probative value to the record. Nevertheless, under the decided cases the head and chest shots here were properly admitted in evidence.

3. The defendant signed a paper which was introduced in evidence and part of which stated: 'Myself and wife and Jimmy Owens were standing outside talking when Rudy came out the door. Rudy hit my wife and caught her by her ponytail. Then Rudy hit me and had me over a car and was beating me. I then pulled my gun out of my right pocket and shot Rudy. I fired my gun one time. Then Rudy ran back inside the club and I left and went home. Approximately two hours later the sheriff of Madison County came to my house and got me.' Objection is made to instructions by the court on the subject of confession and flight on the ground that they are unsupported by the evidence. Mere incriminating statements will not authorize a charge on confessions. Oliphant v. State, 52 Ga.App. 105, 182 S.E. 523. Where the admission of homicide is coupled with facts showing excuse or justification, the statement is not a confession, and a charge on confessions is erroneous. Pressley v. State, 201 Ga. 267, 271, 39 S.E.2d 478; O'Neal v. State, 213 Ga. 232(3), 98 S.E.2d 376. 'A charge on confessions is authorized when the accused admits the homicide with which he is charged and in connection therewith states no facts or circumstances showing excuse or justification for the killing.' Weatherby v. State, 213 Ga. 188, 190, 97 S.E.2d 698, 700. The court here left to the jury a decision as to whether a confession was made or not and instructed that all admissions and...