Herrin v. State
| Decision Date | 16 April 1973 |
| Docket Number | No. 27815,27815 |
| Citation | 197 S.E.2d 734,230 Ga. 476 |
| Parties | Marshall H. HERRIN v. The STATE. |
| Court | Georgia Supreme Court |
Griggs & Cathey, Joseph A. Griggs, Dennis T. Cathey, Edward E. Strain, III, Cornelia, for appellant.
V. D. Stockton, Dist. Atty., Cornelia, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
Marshall Hewlett Herrin appeals his conviction and sentence to life imprisonment for the murder of Larry William Wingfield. Held:
1. The first enumeration, asserting that the trial judge 'erred in refusing to grant a new trial on the ground that a prejudicial photograph, showing evidence of other unrelated crimes, was admitted in evidence over objection of defense counsel' is without merit.
The objection made at the trial was that the photograph 'had no bearing whatsoever in this particular case, and it has not even been identified.' Counsel concedes in argument before this court relevancy and identification, in that the picture depicts the contents of a luggage compartment of an automobile connected with the homicide containing several pairs of gloves which tend to explain the absence of fingerprints on the vehicle. He insists, however, that the other things depicted, a sledge hammer, a crowbar, and a lock punch, are evidence of the unrelated crime of possession of tools commonly used in the commission of burglary, theft, or other crimes.
The basic elements of the above offense which the photograph allegedly depicts are possession coupled with an intent to make use thereof in the commission of a crime. Code Ann. § 26-1602. The photograph at the most discloses possession, not intent, but even if we assume that it depicts a crime committed by the defendant, there was no timely objection in the trial court on this ground. The failure to make a specific and timely objection is treated as a waiver. Hicks v. State, 216 Ga. 574, 576, 118 S.E.2d 364.
Furthermore, when evidence is offered, part admissible, and part inadmissible, and the objection is to the evidence as a whole, it is not error to admit the whole. Finney v. Blalock, 208 Ga. 218(1), 65 S.E.2d 920.
2. The third enumeration, asserting error on an abuse of discretion in overruling the motion for new trial as sought on the ground of newly discovered evidence, is also without merit.
The indictment alleges that the offense occurred on June 11, 1972. The trial took place on June 27, 1972. The affidavit of Mrs. Sylvia T. Herrin, the wife of the defendant, dated November 27, 1972, discloses that on June 11, 1972, Billy Andrews told her that Herrin had killed Wingfield, but that if he cared for her and the Herrins' infant child 'he better keep his mouth shut.' On June 15, 197i, he repeated this, coupled with the threat that otherwise he would kill her and the child. On the day of trial he again repeated this threat. The affidavit of Mrs. Shirley Andrews, widow of Billy Andrews, dated November 25, 1972, discloses that Billy Andrews told her on June 11, 1972, that he shot Larry Wingfield, that it was her fault, and that he threatened to kill her. The affidavit of Mrs. Sandra C. McClellan, dated November 20, 1972, discloses that during the night of June 10-11, 1972, her husband came back home and told her that Billy Andrews shot Wingfield; that on Sunday morning, June 11, 1972, Billy Andrews came to their home, told her husband that he was taking Herrin's automobile, and that if McClellan knew what was good for him and his family he would keep his mouth shut and Herrin would 'come out of it all right because he didn't do it and they can't prove it.' This deponent also stated that she received a note in her mail box the day before trial stating that she 'better not appear in court.' The first affidavit of Dan Angel, a former DOI agent, is dated December 16, 1972. In it he states that Mrs. Barbara Hubbard Martin, a prosecuting witness, told him she would lie in court to convict Herrin. Angel had testified on cross examination that she never made this statement. Angel also states in this affidavit that Mrs. Shirley Andrews told him that Billy Andrews killed Wingfield and threatened to kill her if she talked. In a second affidavit, dated December 29, 1972, Angel stated that he received the information from Mrs. Andrews before Herrin's trial, and that her statements to him were based on what Billy Andrews told her.
Without here stating the six elements repeated in Bell v. State, 227 Ga. 800, 805, 183 S.E.2d 357 for the grant of a new trial on the...
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Stanley v. State
...these exhibits may have had on the jury. We cannot find that the trial court erred in admitting these exhibits. Herrin v. State, 230 Ga. 476(1), 197 S.E.2d 734 (1973); West v. State, 232 Ga. 861(1), 209 S.E.2d 195 6. The defendant contends that the trial court granted the defendant's common......
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...State, 197 Ga. 641(9) (30 S.E.2d 259) (1944), or to procure a new trial on the basis of newly discovered evidence. Herrin v. State, 230 Ga. 476, 478, 197 S.E.2d 734 (1973). In Lyon v. State, supra, the court reasoned that if such admissions were allowed as evidence upon the trial of the acc......
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Geoffrion v. State
...for a ruling by the trial court. "The failure to make a timely and specific objection is treated as a waiver. Herrin v. State, 230 Ga. 476(1), 197 S.E.2d 734 (1973)." Seabrooks v. State, 251 Ga. 564, 566(1), 567, 308 S.E.2d 160. In the case sub judice, any valid issue arising from improper ......
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Emmett v. State
...These statements are to the effect that another person had admittd to them that he committed the offenses. In Herrin v. State, 230 Ga. 476, 478, 197 S.E.2d 734, 736, this court stated: 'The requirements as stated in Bell, supra (227 Ga. 800, 805, 183 S.E.2d 357), as well as Burge v. State, ......