Holley v. State

• Decision Date: 13 March 1941
• Docket Number: 13506.
• Citation: 14 S.E.2d 103,191 Ga. 804
• Parties: HOLLEY v. STATE.
• Court: Georgia Supreme Court

14 S.E.2d 103

191 Ga. 804

HOLLEY v. STATE.

No. 13506.

Supreme Court of Georgia

March 13, 1941

Judgment Adhered to on Rehearing March 29, 1941.

Wade Holley was convicted of the offense of murder. At the trial two or three witnesses testified that they were present and saw the killing,--at least saw the shooting of W. L. Beckum which physicians who examined the body of the deceased testified caused his death. It took place at a filling station between four and five o'clock in the morning, in the town of Louisville, Jefferson County. According to the State's witnesses, an argument arose between Holley and Bargaineer while Holley was waiting to have Beckum repair a flat automobile tire. Holley asked Bargaineer if he worked there, and when told that he did not but worked at a near-by station, Holley told him to go on back to his own station. After an exchange of words between them, Holley slapped Bargaineer, one witness testifying that he knocked him down whereupon Beckum, who had been in the station walked outside where the men were quarreling and asked Holley why he hit Bargaineer. He had the inner tube in his hands, but there was no testimony that he threatened Holley. Holley then said to Beckum that he had stopped to have his tire fixed, saying further, 'You're going to fix it or put it down one;' and when Beckum started to drop the inner tube, Holley drew his pistol from his pocket and shot Beckum. There was testimony that the defendant had been seen drinking that night before the shooting; and this he admitted in his statement to the jury. Also there was evidence of rough language and quarreling about the station after the defendant stopped to have his tire repaired, and before the shooting. The defendant's witnesses were all character witnesses, though some of them, on cross-examination, admitted having heard of charges of misconduct on his part. He was a police officer of the City of Augusta.

The defendant made a long statement to the jury, in which he charged Beckum with assuming a threatening attitude toward him because of his quarrel with Bargaineer, and that he though Beckum was about to strike him with a tool, and hence he shot in self-defense. He excepted to the overruling of his motion for new trial.

F. B. Tyler, L. W. Cooper, W. K. Miller, and Pierce Bros., all of Augusta, for plaintiff in error.

W. H. Lanier, Sol. Gen., of Metter, M. C. Barwick, and M. Cook Barwick, both of Louisville, Ellis G. Arnall, Atty. Gen., Duke Davis, Asst. Atty. Gen., and C. E. Gregory, Jr., of Atlanta, for defendant in error.

Syllabus Opinion by the Court

ATKINSON Presiding Justice.

1. In a murder case, where the homicide was committed on March 28, 1940, and the accused was instantly arrested and lodged in jail, employed counsel on May 7, 1940, and was indicted on May 13, 1940, the trial judge did not abuse his discretion when on the call of his case on May 14, 1940, he overruled a motion for continuance, based on the grounds: (a) that, considering the gravity of the charge against him, it is too early to be tried, Code, § 27-2002; Kelloy v. State, 151 Ga. 551, 107 S.E. 488, Cannady v. State, 190 Ga. 227, 9 S.E.2d 241; (b) that a feeling of hatred, enmity, and prejudice, manifested against him at the time of the homicide, had not abated, Hunter v. State, 43 Ga. 483, 519; and (c) that counsel having been informed that an eyewitness, whose name was not given, who is believed to be a resident of Georgia but now temporarily absent in Florida, would testify to facts tending to exonerate the accused, if he could be located, every effort being made to get in touch with such person since May 8, 1940, but to no avail; there being no Georgia address of the absent witness given, and no facts given on which to base a rational expectation that the presence of such witness could be had at a subsequent term. Code, § 81-1410.

2. It was not erroneous to overrule a challenge to the array of jurors, based on the ground that the judge excused from service a number of jurors without legal excuses being by them submitted in open court, and without an opportunity being given to the defendant to determine the jurors' fitness and ability as triors. It will be presumed, until the contrary appears, that the judge acted on good and lawful cause. Parish v. State, 6 Ga.App. 163, 64 S.E. 489.

3. It was not erroneous to allow the State to introduce the testimony of a witness whose name did not appear on the indictment. When furnished with a list of the witnesses who swore before the grand jury, another witness whose name was not on the list was not incompetent to testify. Inman v. State, 72 Ga. 269(1); Taylor v. State, 138 Ga. 826(5), 76 S.E. 347.

4. The sheriff as a witness was asked whether the defendant made any effort to escape jail, and he answered in the affirmative. Immediately after the answer counsel for the accused stated an objection and asked that a mistrial be declared. The judge answered, 'I sustain the objection and I instruct you gentlemen now to pay no attention to it whatever, it is ruled out, and I warn you gentlemen of the jury to pay no attention to the evidence. It ought not to be used against this defendant. Flight itself may be always proven, that would be admissible, but in this case this would be an attempt to prove a separate and distinct offense, that is, trying to escape from jail; therefore I overrule the motion for mistrial but I warn you gentlemen of the jury not to pay any attention to the evidence whatever, wipe it from your minds, don't let it have any effect upon your minds at all one way or the other.' It was not erroneous to overrule the motion to declare a mistrial.

5. A character witness for the accused, on cross-examination, was asked the question, 'A man that leaves his work at eleven o'clock, gets in his car, starts drinking whisky, puts his pistol in his pocket, and drives down to a neighboring town and stays there until 4:30 or 5:00 o'clock in the morning, and then kills a man: do you still say that he is a man of good character?' It was not erroneous to allow this question over the objection 'that it is a hypothetical question.'

6. A ground of the motion for a new trial complains of the admission of certain testimony. This assignment of error, which should be complete within itself, does not show that the evidence was objected to and the grounds of objections stated to the court at the time of its admission, but expressly states that no objection was urged to its admission, and proceeds then to give stated reasons why it was inadmissible. This ground is insufficient to present any question for decision.

7. There is no merit in the complaint that it was erroneous to admit testimony of a witness that he 'had never heard of any cigarettes, or any cloth from the King Mill, being brought down here for sale,' and that the witness 'did not know what the accused and his companions were doing here that night,' and 'never heard of the accused coming down here before.' The objection was that the testimony was immaterial to the issues involved, the Solicitor General not having stated in his place an intention to connect it with the defendant further on in the trial.

8. Counsel for the State, during his argument to the jury, made a remark in substance as follows: 'Gentlemen, I wish you knew Beckum--he was at work--he had to work--he didn't have time to ride over the country, drinking liquor or causing trouble.' Counsel for the defendant objected because such remark was improper and was prejudicial to the defendant's cause, and inflammatory, and calculated to prejudice and did prejudice the minds of the jury, and was not authorized by the evidence; and counsel made a motion that a mistrial be declared by the court. The court refused so to declare, but said that such argument was improper, and instructed the jury to disregard it. The complaint of the refusal to declare...