Forehand v. State , 235 Ga. 295 ( 1975 )

Hall, Justice.

This is an appeal from a conviction for the offense of murder. The state’s evidence was that the appellant fired four shots at the victim who fell to his knees. The appellant then fired two m ore shots into the victim. After the sixth shot, and while the victim was on the floor, the appellant took his foot and pushed the victim over while still snapping the gun at the victim. The appellant then ran from the scene.

1. The appellant enumerates error on the failure of the trial court to instruct the jury to disregard the following remarks of the prosecutor in his closing argument: "The State will contend, ladies and gentlemen, that it was a cold calculated act on the part of this man. There is evidence by the testimony, is evidence by the wounds. Shot the man in the back of the head. I don’t know if any of you recall seeing a television program several weeks ago on the Nazi extermination of the Jews. Do you recall how they shot the' Jews?” We find no error. See Miller v. State, 226 Ga. 730 (5) (177 SE2d 253).

2. The second enumeration relates to a statement by the jury foreman in response to a question from the trial court. It was late in the afternoon and the court inquired of the jury as to their progress in reaching a verdict. The foreman responded as follows: "We are not attempting to derive at it from the standpoint at which you have requested us to and it might take longer than you anticipate.” The judge stated that he wasn’t sure he understood the statement. The foreman replied as follows: "We voted two times and we have one more to vote and will go back. We might not be able to rush back. If we need to convince the verdict of either charges you have asked us to come up with we will let you know.” The appellant contends these statements show that the jury was not following the law as charged by the court. We disagree with appellant’s interpretation and furthermore the point is not reviewable for the reason that counsel did not raise the matter by any objection or motion in the trial court. Allen v. State, 233 Ga. 200 (2) (210 SE2d 680).

3. Appellant’s enumeration that the trial court erred in failing to charge the jury that venue was an essential element of the offense is without merit. Venue was proven and the court correctly charged on reasonable doubt. See Harwell v. State, 230 Ga. 480 (1) (197 SE2d 708).

Argued July 10, 1975 Decided September 11, 1975 Rehearing denied September 30, 1975. Thomas C. Bianco, Paul McGee, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, Arthur K. Bolton, Attorney General, Julius C. Daugherty, Jr., Staff Assistant Attorney General, for appellee.

Judgment affirmed.

All the Justices concur, except Gunter, Ingram and Hill, JJ., who dissent from Division 1 and from the judgment.