Holloway v. State

• Citation: 137 Ga.App. 124,222 S.E.2d 898
• Decision Date: 02 December 1975
• Docket Number: 3,2,No. 51161,Nos. 1,51161,s. 1
• Parties: M. W. HOLLOWAY v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 898

222 S.E.2d 898

137 Ga.App. 124

M. W. HOLLOWAY v. The STATE.

No. 51161.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Dec. 2, 1975.

Rehearing Denied Dec. 19, 1975.

Roberts, Roberts & Rainwater, Guy Velpoe Roberts, Jr., Cordele, for appellants.

D. E. Turk, Dist. Atty., Cordele, for appellee.

EVANS, Judge.

Defendant was indicted and tried for the crime of murder. He was found guilty of voluntary manslaughter and sentenced to serve 20 years. Defendant appeals. Held:

1. During the entire examination of prospective jurors, the court allowed counsel to examine specific jurors with the effect being considered as asked of each juror. The examination of such jurors by counsel if very broad, 'touching any matter or thing which would illustrate any interest of the juror in the cause, . . . the relationship or acquaintance of the juror . . . (and) any fact or circumstance indicating any inclination, leaning or bias which the juror might have respecting the subject-matter of the suit . . . and religious, social and fraternal connections of the juror.' Code Ann. § 59-705. But the trial judge still retains the discretion to limit the examination to questions dealing directly with the specific case and to prohibit general questions and in particular, those questions of law which the jurors would have to consider and determine from the evidence. Enumerations of error 3, 4, 5 and 7 were too broad and general; hence, the court did not err in sustaining objections to such questions. See Hill v. State, 221 Ga. 65(3), 69, 142 S.E.2d 909.

2. Enumerations of error 8 through 14 deal with defendant's contention that certain jurors were asked questions on the voir dire which indicated bias, prejudice, or some other reason as to their state of mind, which would suggest they were disqualified. He argues that the trial judge erred in holding these jurors qualified.

But in each and every one of these enumerations it did not appear that 'the juror's opinion was shown to be so firm or fixed as to be unyielding.' See Grasham v. Southern Ry. Co., 111 Ga.App. 158(4), 141 S.E.2d 189, and at page 160. No error appears in view of the above. Also see Thacker v. State, 226 Ga. 170(2), 174, 173 S.E.2d 186; Butler v. State,231 Ga. 276, 278(3), 201 S.E.2d 448.

3. Enumeration No. 6 contends the court erred in not allowing defendant to ask the jurors, 'Do you have any feeling against a person who uses a gun to protect himself?' No error is shown here. The question was too broad and general to show that harm resulted to defendant. Many persons are against violence of any kind, and particularly against one person shooting another. There were many ways in which the defendant's counsel could have approached this matter so as to render same not objectionable. If the juror had a feeling against a person who uses a gun to protect himself, that would not have disqualified him as a juror. He still could have been fair and impartial in consideration of all the evidence. For instance, one person might slap another with his hand and the defendant might use a gun to protect himself. If so, the defendant would have been in violation of the law because the means of protection were disproportionate to the assault made upon him. See Code § 26-902; Harper v. State, 127 Ga.App. 359, 360, 193 S.E.2d 259. Or it may be that one man might have a knife in his hands and stand twenty paces away from the defendant, who pulls out a gun and 'protects himself' by shooting and killing his adversary. Most people would have a feeling against that kind of conduct by the defendant. We repeat that the question was much too broad.

4. As to peremptory strikes, defendant used only 19 of his 20 strikes, having one strike left over, and he cannot claim harmful error because of not being allowed to ask questions of any particular juror to learn various matters about the juror's background. Evans v. State, 222 Ga. 392, 401(14), 150 S.E.2d 240.

5. The transcript shows that defendant Holloway and Crumbley, who was shot and killed by Holloway, were in Holloway's yard and engaged in an argument and altercation. Defendant contended the argument revolved around an accusation by Crumbley that Holloway had tried to kill him at a fish pond some time earlier, which Holloway stoutly denied. Defendant and Crumbley began fighting; defendant disengaged himself and went into his house, and Crumbley also came into the house with a knife in his hands, and it was at this time that defendant grabbed his gun and started shooting; and one of the shots pierced a vital spot in Crumbley's body and killed him. There were many discrepancies in defendant's story, but we are setting it forth above in the way that is most favorable to defendant's contentions, despite the discrepancies.

Defendant contended he shot from a downward position upward, but expert testimony was introduced to show that the trajectory of the bullet in Crumbley's body ranged downward, thus indicating that defendant Holloway could have been standing over Crumbley at the time of the fatal shot. Defendant's first story was that Crumbley took his jacket off right after he got out of the truck while in the yard. When confronted with the fact that the jacket had a bullet hole in it, defendant changed his story and claimed that defendant himself took the jacket off Crumbley after Crumbley had been shot. He gave no reason for such action except that he wanted to learn how badly Crumbley was shot.

The evidence amply warranted a verdict of guilty of manslaughter; and further authorized the jury to disbelieve defendant's testimony because of being contradicted by prior contradictory statements about when and who took the jacket off the deceased and as to whether the shots ranged downward or upward. Code § 38-1803. See also Nolen v. State, 124 Ga.App. 593, 594, 597, 184 S.E.2d 674.

6. The jury is the sole arbiter of the weight to be given the testimony of each witness; and may believe a part of what one witness swears and disbelieve another part; may believe one witness in preference to a thousand who swear in opposition to his testimony. See Code §§ 38-104, 38-105, 38-106, 38-107. Also see Jackson v. State, 13 Ga.App. 147(1), 78 S.E. 867; Willis v. State, 63 Ga.App. 262(1), 10 S.E.2d 763; Largin v. State, 77 Ga.App. 111, 119, 47 S.E.2d 895; Cox v. State, 172 Ga. 482(3),158 S.E. 17.

7. Having considered each and every one of defendant's enumerations of error and finding no reversible error, the judgment is affirmed.

Judgment affirmed.

BELL, C.J., PANNELL, P.J., and QUILLIAN, WEBB and MARSHALL, JJ., concur.

DEEN, P.J., and CLARK and STOLZ, JJ., dissent.

DEEN, Presiding Judge (dissenting).

I fully concur in all that the majority holds in Divisions 1, 2, 3 and 4. I disagree, however, with the majority's opinion as to the general grounds and would reverse the judgment of conviction as not being supported by the evidence.

The record reveals the following evidence was elicited at the trial: Appellant phoned the sheriff's office to report an incident at his father's home, where he was caretaking during his father's stay in the hospital. The deputy sheriff responded to the call and found the decedent lying in the doorway of the house. The appellant made a statement to the officer to the effect that the deceased was drunk, had cursed him and begun a fight, and that the decedent had followed him into the residence when he tried to disengage himself from the fight. Appellant further stated that the deceased had attacked him with a knife and that he had been forced to shoot in self-defense. The police officer testified that the dead man had one gunshot wound in his left shoulder and a cut on his forehead which was not visibly bloody. Grass and dirt were found on the inside of the back of the deceased's trousers and his body had been covered with a sheet. The day was rainy and the officer further testified that the appellant was wet, there were scratches on his stomach, his shirt had been torn and his undershirt ripped and that there were signs of a scuffle on the porch. An autopsy revealed that the trajectory of the bullet was inconsistent with the appellant's version of how he shot his alleged assailant. A further discrepancy developed between the appellant's story and the physical evidence in that appellant originally related that the deceased had removed his coat prior to the attack but the coat itself revealed a bullet hole which was described in expert testimony as having been made at point-blank range. Appellant also noted that the spread he had used to cover the body had been taken from the house but the widow testified that it was identical to the one which had been used by her husband in his truck and that it had been missing since the day of her husband's death.

Based upon this evidence the state urged that the appellant had murdered the decedent in the cab of his truck (relying on testimony that the trajectory of the bullet would be 'consistent' with such an hypothesis), had dragged the body to the house (relying on the testimony that grass and dirt were discovered in the back of the dead man's trousers and testimony that 'possibly and probably' the cut to the forehead had been inflicted after the gunshot wound) and had fabricated the story of self-defense (relying on the inconsistencies in appellant's statement and the other evidence presented). The appellant elicited testimony that a thorough investigation of the truck was made but there was no evidence found which would indicate a homicide had been committed there and that blood found near the truck was analyzed as 'canine blood.' Since the day was rainy, no signs of a body having been dragged were found. The knife which appellant alleged to have been used by the dead man to attack him with was discovered but no tests for fingerprints were made; a subsequent investigation failed to establish whether it belonged to the appellant or to the deceased.

The only...