Hill v. State
| Decision Date | 09 May 1955 |
| Docket Number | No. 18932,18932 |
| Citation | 88 S.E.2d 145,211 Ga. 683 |
| Parties | Harold E. HILL v. The STATE. |
| Court | Georgia Supreme Court |
Jack E. McGahee, Harris, Chance & McCracken, Augusta, for plaintiff in error.
George Hains, Sol. Gen., Augusta, Eugene Cook, Atty. Gen., Joan Larsen, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
Harold E. Hill was convicted, in Richmond Superior Court, of the murder of one Frederick William Noegel, Sr., and sentenced to death by electrocution. The record discloses that on October 9, 1954, the defendant entered a grocery store of the deceased in the City of Augusta with a blackjack for the purpose of robbing the deceased; that he struck the deceased twice with the blackjack and took his wallet containing a sum of money from him, and during the progress of the robbery Noegel, in an effort to defend himself, secured a butcher or boning knife from the meat block located in the place of business, and inflicted cuts on two of the defendant's fingers, the defendant contending that when that occurred he endeavored to get loose from Noegel and break off the encounter entirely, and being unable to do so, he took the knife from Noegel and inflicted a number of wounds upon him from which he died. To the overruling of his motion for a new trial as amended the defendant excepts, the general grounds of the motion, however, being expressly abandoned. Held:
1. It was not error, as complained of in ground 1 of the amended motion for a new trial, for the trial court to permit the coroner's physician, a witness for the State, to testify as to the nature, character, and number of wounds inflicted upon the deceased, and that the cause of his death was multiple lacerations, stab wound of heart, and hemorrhage, while referring to and reading from what he testified was his original examination report, his original paper signed by him, over the objection: where the court ruled that he could read therefrom 'provided he swears positively that those are the facts,' and that he 'can refresh his memory from the record,' and the witness replied: 'Yes, I am refreshing my memory out loud,' and then proceeded to describe the nature, character, and number of wounds found by him upon the body of the deceased, and as to the cause of death. Code, § 38-1707 provides: 'A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally shall speak from his recollection thus refreshed, or shall be willing to swear positively from the paper.' See also Akins v. Georgia Railroad & Banking Co., 111 Ga. 815, 35 S.E. 671; Clackum v. State, 55 Ga.App. 44, 49(7), 189 S.E. 397, and the cases there cited.
2. Ground 2 of the amended motion, complaining of the admission of testimony concerning a certain knife purchased after the homicide, to the effect that the knife exhibited to the witness in the presence of the jury was similar to the one which the State contended was used by the accused in the slaying of the deceased, is without merit. The knife itself was excluded from evidence on objection of counsel for the defendant, since it was conceded by the State that it was not the knife used by the defendant, but testimony of the witness with respect thereto simply for the purposes of description and comparison, and as illustrating the type, size, and character of the knife used by the defendant in the slaying of the deceased, was properly admitted by the court. Mayor, etc., of Madison v. Thomas, 130 Ga. 153 155(1), 60 S.E. 461; Mitchell v. J. S. Schofield's Sons Co., 16 Ga.App. 686, 688, 85 S.E. 978.
3. Ground 3 of the amended motion complains of the admission in evidence of two photographs of the deceased, identified as the State's Exhibits 13 and 14, the objection urged thereto being as follows: 'We object to the introduction of State's Exhibits Nos. 13 and 14, which were pictures made by Mr. Holley at approximately 11:30 on the night of October 9 at Elliott's Funeral Home as being irrelevant and immaterial and actually prejudicial to this case, due to the fact that they do not represent the conditions in the store at all and the testimony has been delivered here by various witnesses as to the injuries sustained by Mr. Noegel, and we feel that these two exhibits are actually immaterial to anything which might have existed up at the store and we object to their being admitted as such, as it would be prejudicial to the defendant and we ask that they be excluded on those grounds,' whereupon the court made the following ruling: 'I admit them for the purpose of illustrating the nature and extent of the wounds, if they do, and for that purpose alone.' These photographs had been identified by the State's witness Roscoe Holley, as photographs of Noegel, the deceased, taken by him at a named funeral home about 11:30 on the night that the homicide was committed. It will be noted that there was no objection to the photographs upon the ground that they had not been properly identified, the objection thereto being that they were irrelevant and immaterial and prejudicial to the case because they did not represent the conditions in the store where the homicide occurred, and that testimony had been delivered by various witnesses as to the injuries sustained by Noegel, and the photographs would be prejudicial to the defendant. In Bryan v. State, 206 Ga. 73, 74, 55 S.E.2d 574, this court held that photographs showing an accurate representation of an object which is material to the issue are admissible, and that the location of wounds is material to the issue in a homicide case, and that they should not be excluded because there is other testimony as to the location of the wounds, because to do so would preclude the State from establishing a material fact by more than one source of evidence, and that a relevant and material fact is not subject to an objection...
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...made was not error. Smith v. State, 202 Ga. 851, 866, 45 S.E.2d 267; Bryan v. State, 206 Ga. 73, 74, 55 S.E.2d 574; Hill v. State, 211 Ga. 683(3), 88 S.E.2d 145; Walker v. State, 216 Ga. 15(3), 114 S.E.2d 431; Jackson v. State, 225 Ga. 39, 47, 165 S.E.2d 711; and, Johnson v. State, 226 Ga. ......
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...do so would preclude the State from establishing a fact by more than one source of evidence. The Bryan case was cited in Hill v. State, 211 Ga. 683(3), 88 S.E.2d 145. The photographs were admissible to show the condition of the body of the deceased and the nature and extent of his wounds, a......
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