Colson v. State, 51676

• Citation: 226 S.E.2d 154,138 Ga.App. 366
• Decision Date: 16 April 1976
• Docket Number: 3,2,Nos. 1,No. 51676,51676,s. 1
• Parties: E. E. COLSON v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 154

226 S.E.2d 154 138 Ga.App. 366 E. E. COLSON
v.
The STATE. No. 51676. Court of Appeals of Georgia, Division Nos. 1, 2, 3. April 16, 1976.

Page 156

[138 Ga.App. 371] A. Edwin Pooser, IV, Millard C. Farmer, Jr., Perry, for appellant.

Stephen Pace, Jr., Dist. Atty., Perry, for appellee.

[138 Ga.App. 366] EVANS, Judge.

The defendant was indicted for murder and was convicted of voluntary manslaughter and sentenced to serve five years. Defendant appeals. Held:

1. The motion by appellant to dismiss the brief by the state because it was filed late is without merit. The brief of the appellant is an absolute necessity, for if none is filed and he fails to argue the case or any part thereof, appellant would have abandoned any claims of error. See Rule 18(c) (2), Code Ann. § 24-3618. However, the failure of the appellee to file a brief does nothing to the case except to admit the statement of facts by the appellant, which may be accepted by this court as being prima facie true. See Rule 18(b)(1), Code Ann. § 24-3618.

2. The undisputed facts show that the deceased had threatened to kill the defendant and had approached his residence in a violent and turbulent manner, cursing him and keeping his hand in his pocket. On the day of the stabbing the evidence shows defendant had reason to have a knife in his possession. The deceased had been aggressive, approaching defendant in a raging, cursing manner. The deceased charged into the home where the defendant was present. All of these facts together with the circumstantial evidence were for determination by the jury in deciding as to whether the defendant was guilty of murder, manslaughter, or whether or not he should have been acquitted for killing the deceased in self defense.

3. The evidence was sufficient to support the charge of manslaughter.

4. There is no merit in the enumeration of error that the court erred in failing to direct a verdict of acquittal. The cases of Merino v. State, 230 Ga. 604, 605, 198 S.E.2d 311 and Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 are not applicable to the facts of this case. While the jury might have determined that there was a clear right to use force in defense of habitation, nevertheless, there was sufficient evidence for the jury to decide and determine that the defendant was guilty of manslaughter.

[138 Ga.App. 367] 5. Counsel for defendant contends that the District Attorney submitted negative evidence during the closing argument and that the law forbids the introduction into a case, by way of argument, facts not in the record which are calculated to prejudice the accused. See Barnum v. State, 136 Ga.App. 469, 221 S.E.2d 829; Patterson v. State, 124 Ga. 408(1), 52 S.E. 534; and Taylor v. State, 121 Ga. 348(7), 49 S.E. 303. However, examination of the closing argument, which has been forwarded as a part of the transcript, fails to disclose any objection at the time the District Attorney supposedly submitted factual situations in said closing argument. This court cannot correct errors on which objections are made for the first time in this court. Ocilla Truck, etc., Co. v. Nolan, 124 Ga.App. 417(3), 184 S.E.2d 48; Cowart v. Ga. Hospital Service Assn., 135 Ga.App. 45(1), 217 S.E.2d 379.

6. The court did not err in allowing in evidence photographs of the residence as to the front and back of the house, over the objection that same was not a fair and accurate representation of the conditions at the time of the stabbing. The photographs were made at some period of time after the stabbing incident, but defense counsel failed to point out what differences had occurred to show that the pictures did not

Page 157

portray a fair and accurate representation of the scene as it existed on the day of the stabbing. The objection is not meritorious.

7. At the beginning of the trial, the District Attorney stated in his place that the chief prosecutor in the case would assist him in handling the case and would be a witness. The court ruled that it had the discretion to let him remain in the courtroom. After numerous witnesses had testified, the chief prosecutor, a deputy sheriff, was called as a witness. Defense counsel could have required or requested the court to call this witness first. This he failed to do. Under the circumstances no abuse of discretion has been shown, since the court was not called upon to rule that the chief prosecution witness would be allowed to remain in the courtroom with the District Attorney, but would be called as the first witness. Compare Stuart v. State, 123 Ga.App. 311, 312(1), 180 S.E.2d 581. See Parham v. State, 135 Ga.App. 315(8), 217 S.E.2d 493.

[138 Ga.App. 368] 8. The evidence here showing sudden, violent and irresistible passion resulting from serious provocation which could have caused the defendant to kill the deceased, authorized the court to charge on voluntary manslaughter. Code § 26-1102; Butts v. State, 126 Ga.App. 512, 515(7), 191 S.E.2d 329; Witt v. State, 124 Ga.App. 535, 536(4), 184 S.E.2d 517.

9. The court did not err in refusing to charge that a person claiming the right of self-defense is not required to retreat or consider whether he could retreat safely. This charge is argumentative and more favorable to the defendant and should not have been given in the charge. A somewhat similar written request was not required in Glover v. State, 105 Ga. 597, 598(2), 31 S.E. 584, although the facts there were not the same as in this case. However, it is noted that Code Ann. § 26-1011 (§ 70 of the Penal Code of 1895) has been amended in the new Criminal Code to that found in Code §§ 26-901, 26-902, 26-903, and 26-904.

10. Counsel for defendant contends that the trial judge should so instruct the jury with or without request as to the general principles of law which of necessity must be applied in reaching a correct verdict on the issues. Foskey v. State, 126 Ga.App. 268(1), 190 S.E.2d 556; Spivey v. State, 59 Ga.App. 380, 1 S.E.2d 60; Sledge v. State, 99 Ga. 684(1), 26 S.E. 756; Strickland v. State, 98 Ga. 84(2), 25 S.E. 908. But under the recent decision by the Supreme Court in the case of State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354, the trial judge has a broad discretion in whether or not he charges on all conflicting issues of facts unless there is a request to charge. There is no merit in this complaint.

11. For the same reason, the court did not err in not failing to charge on inequality in physical strength between the defendant and the deceased as justification in the absence of a request. Compare Foskey v. State, 126 Ga.App. 268, 190 S.E.2d 556, supra; Spivey v. State, 59 Ga.App. 380, 1 S.E.2d 60, supra; Sledge v. State, 99 Ga. 684(1), 26 S.E. 756, supra; Strickland v. State, 98 Ga. 84(2), 25 S.E. 908, supra. The Supreme Court holds in State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354, supra, that without a request, a charge need not be given if the charge as given is fair and otherwise complete.

12. The court did not err in failing to charge the [138 Ga.App. 369] defense of habitation in the absence of a request. It is true the deceased had made three assaults on that house and threatened defendant. However, there was no written request to so charge. See State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354, supra.

13. Prior to the state's calling the wife of the defendant as a witness, the court had a hearing outside of the presence of the jury to determine whether the wife would testify, and the court ruled the state might call her as a witness and if she refuses to testify she has to so state the reason. See Merneigh v. State, 123 Ga.App. 485(2), 181 S.E.2d 498. Thus, under the objection of the defendant, based upon Merneigh v. State,123 Ga.App. 485(2), 181 S.E.2d 498,

Page 158

supra, since the wife is now a competent, but not a compellable witness in a criminal proceeding for or against her husband, the court ruled that the state had the right to call her and require her to testify unless she then and there claimed her privilege not to do so. Though it was quite evident that the wife did not intend to testify, nevertheless, the state made her come to the witness stand and state her election not to testify, over defendant's objection that it would serve no purpose other than to inflame the minds of the jurors and prejudice the defendant by placing the wife on the stand and compelling her to offer testimony in the case.

14. Although the wife was required by the trial judge to make her election as to whether she would testify against her husband or not in the presence of the jury, when defense counsel arose to make his objection in the presence of the jury to such procedure, the trial judge refused to allow him to make the objection. If the wife was to be required to make her election in front of the jury, it was but right that defendant's counsel would have had a corresponding right to make his objection to such procedure in the presence of the jury. The only conclusion the jury could draw from the state's maneuver, as the state was calling the wife as a...