Hollis v. State

• Decision Date: 12 February 1958
• Docket Number: No. 2,No. 37031,37031,2
• Citation: 102 S.E.2d 610,97 Ga.App. 145
• Parties: C. F. HOLLIS v. The STATE
• Court: Georgia Court of Appeals

Page 610

102 S.E.2d 610

97 Ga.App. 145

C. F. HOLLIS v. The STATE.

No. 37031.

Court of Appeals of Georgia, Division No. 2.

Feb. 12, 1958.

Syllabus by the Court.

1. Where a witness volunteers an answer unresponsive to the question which

tends to put the defendant's character in issue, the court should by every means possible attempt to eradicate the prejudicial remark from the jury's consideration, and, if there is any likelihood that such means as he uses will not be completely successful, he should grant a timely motion for a mistrial. The court, however, has much discretion in the matter, and in view of the instructions given here, the denial of the motion for mistrial did not constitute an abuse of discretion.

2. Where the jury is in possession of all the facts, it is not error, even on cross-examination, to exclude opiniative evidence as to a nontechnical matter.

3. The admission in evidence of the death certificate of the deceased was not error for any reason assigned.

4. The statement that the jury would be 'authorized' to acquit under certain circumstances is technically error as the word suggests a discretion with which the jury was not invested. In view of the charge as a whole, however, no prejudicial error resulted.

5. Where the judge in his charge makes it clear that the issue of involuntary manslaughter is not being submitted to the jury, the fact that he reads Code, § 26-1006 in its entirety, thus including the definitions of both voluntary and involuntary manslaughter, is not error, since its only effect is to define more clearly the distinction between the offenses.

6. The evidence was sufficient to support a finding by the jury that the defendant shot and killed in the heat of passion engendered by a violent quarrel, and while attempting to repel an assault upon him less than a felony, and did not demand a finding that he was forced to kill in order to protect his own life. Accordingly, the verdict of guilty of manslaughter was supported by evidence and the general grounds of the motion for new trial are without merit.

Charlie Frank Hollis was indicted in the Superior Court of Fulton County for the offense of murder and was convicted of voluntary manslaughter. He made a motion for a new trial on the general grounds which was later amended by the addition of 7 special grounds, and the denial of this motion is assigned as error.

Scott Walters, Jr., Albert A. Roberts, East Point, for plaintiff in error.

Paul Webb, Sol. Gen., Thomas R. Luck, Jr., Eugene L. Tiller, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. Counsel for the defendant moved for a mistrial because during his cross-examination of a policeman testifying as a witness for the State the witness volunteered the remark, 'I just know he is hard to get the truth out of. I know that,' and again moved for a mistrial because the same witness while on cross-examination at another point volunteered, also in reference to the defendant, 'He is pretty nervous when he gets in trouble.' On both occasions the court instructed the jury to disregard the remark and not consider it in the case, and then denied the motion for mistrial. It is contended that these remarks put the defendant's character in issue as indicating that he had been previously arrested or questioned and had been in other difficulties with the police.

In Husbbard v. State, 208 Ga. 472, 475, 67 S.E.2d 562, 564, counsel moved for a mistrial because a police officer on cross-examination volunteered: 'On several occasions I have had to go down there and arrest him before then,' and the judge ruled out the evidence but refused to grant a mistrial. The court held: 'It will be noted that counsel for the defendant was responsible for eliciting the answer complained of in this ground. The trial judge, acting immediately, ruled out the evidence, thereby removing it from the consideration of the jury. We cannot say, under the circumstances of this case, that this action by the trial judge did not afford the defendant all the protection to which he was entitled under the law.' In Flournoy v. State, 82 Ga.App. 518(1), 61 S.E.2d 556, 557, where a witness volunteered that a third person, in the defendant's presence, had stated: 'Louie has been in this liquor business a pretty good while,' it was held that, where the objectionable matter was volunteered by the witness and the court takes the proper corrective measures by excluding the testimony and instructing the jury not to consider it, the refusal to declare a mistrial is ordinarily not an abuse of discretion. See also Carrigan v. State, 206 Ga. 707(3), 58 S.E.2d 407; Stanford v. State, 201 Ga. 173(3), 38 S.E.2d 823; Wells v. State, 194 Ga. 70(4), 20 S.E.2d 580; Tye v. State, 198 Ga. 262(4), 31 S.E.2d 471. These two grounds of the amended motion for new trial afford no cause for reversal.

2. Two other special grounds complain that the movant's right to a thorough and sifting cross-examination was abridged because a witness for the State, who had testified that the victim of the shooting picked up a piece of concrete about 2 by 4 by 8 inches, broke it in half and from a distance of 14 feet drew back to throw the pieces at the defendant, was not allowed to answer on cross-examination the questions: 'Do you think it would hurt somebody if they were hit with it?' and 'Have you ever seen anybody hit with a rock or anything like that?' In Moran v. State, 120 Ga. 846(1), 48 S.E. 324, it was held: 'Whether a stick...