Barrett v. State

• Decision Date: 03 November 1976
• Docket Number: No. 52775,No. 2,52775,2
• Citation: 231 S.E.2d 116,140 Ga.App. 309
• Parties: Marcus BARRETT v. The STATE
• Court: Georgia Court of Appeals

Page 116

231 S.E.2d 116

140 Ga.App. 309

Marcus BARRETT v. The STATE.

No. 52775.

Court of Appeals of Georgia, Division No. 2.

Nov. 3, 1976.

Spence, Garrett & Spence, D. William Garrett, Jr., Alpharetta, for appellant.

C. B. Holcomb, Dist. Atty., Canton, Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

McMURRAY, Judge.

Defendant was indicted for murder, convicted of voluntary manslaughter and sentenced to 12 years in prison. Defendant appeals. Held:

1. Defendant's first enumeration of error states that the court erred by exceeding its authority to question witnesses, thereby altering the importance of effect of such testimony. The defendant having failed to object to the inquiries of the court at the time of the trial may not raise the issue for the first time upon appeal. Carlyle v. State, 85 Ga.App. 223(1), 68 S.E.2d 605; Cline v. State, 49 Ga.App. 16(2), 174 S.E. 194. Motions for mistrial should have been made, and these issues called to the court's attention for correction, if needed, or to grant the motions.

2. Upon direct examination the defendant testified that he had never before been charged with a felony. On cross-examination defendant stated that he had misunderstood the question asked on direct and that he had previously been indicted for felonies three times. Defendant argues that the court erred in then allowing the district attorney, for purposes of impeachment, to inquire as to the nature of the prior felony charges.

'A witness may be impeached by disproving the facts testified to by him.' Code § 38-1802. In Stack v. State, 234 Ga. 19, 25, 214 S.E.2d 514, the Supreme Court held there was no error in allowing the district attorney to present evidence of a prior killing by defendant for the purpose of impeaching the testimony of the defendant that he had never killed anyone in his whole life. See also Bryan v. State, 137 Ga.App. 169, 172, 223 S.E.2d 219.

Here the evidence as to the prior indictments against the defendant was received for purposes of impeachment only. The defendant having 'opened the door' to this area of inquiry, there was no error in allowing the state to properly attempt to impeach his testimony.

3. There was no error in allowing the state on cross-examination of defendant's character witness to inquire as to the witness' knowledge of defendant's prior acts of violence. Bryant v. State, 236 Ga. 495, 496(2), 224 S.E.2d 369, and cases cited therein.

4. Defendant contends that a witness, who has known the deceased for several years, should be allowed to testify as to the poor character of the deceased for turbulence and violence on the basis of her knowledge of the deceased. Cited as authority are Turner v. State, 70 Ga. 765, 766(4), and Hodgkins v. State, 89 Ga. 761(1), 15 S.E. 695, but these cases are not applicable, as they deal with the evidence of a reputation for good character which arises when a long time acquaintance of a person has not heard anyone attacking the character of that person.

'As a general rule, the character of a murder victim is irrelevant and inadmissible in the murder trial. See Code § 38-202 . . . Proof of violent and turbulent character of the deceased becomes admissible when it is shown prima facie that the deceased was the assailant, that the accused had been assailed, and that the accused was honestly seeking to defend himself.' Henderson v. State, 234 Ga. 827, 828, 218 S.E.2d 612, 614. It is well settled in Georgia that the general character of the deceased for violence will, as to the party, making the attack, be confined to the reputation which the deceased had in the community and will not extend to specific acts. Powell v. State, 101 Ga. 9(1), 29 S.E. 309; Ivey v. State, 42 Ga.App. 357(2), 156 S.E. 290; Jefferson v. State, 56 Ga.App. 383(5), 192 S.E. 644.

Reputation of a person is the kind of person other people say he is. Columbus & Rome Railway Co. v. Christian, 97 Ga. 56(3), 25 S.E. 411; Anderson v. State, 72 Ga.App. 487, 789, 34 S.E.2d 110; Clark v. State, 52 Ga.App. 254, 183 S.E. 92. Here, the witness' testimony as to deceased's reputation...