Holloway v. State , 137 Ga. App. 124 ( 1975 )

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 is very broad, "touching any manner, 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 Arm. § 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 SE2d 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 R. Co., 111 Ga. App. 158 (4) (141 SE2d 189), and at page 160. No error appears in view of the above. Also see Thacker v. State, 226 Ga. 170 (2), 174 (173 SE2d 186); Butler v. State, 231 Ga. 276, 278 (3) (201 SE2d 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 defendánt. 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 SE2d 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 SE2d 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 SE2d 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 SE 867); Willis v. State, 63 Ga. App. 262 (1) (10 SE2d 763); Largin v. State, 77 Ga. App. 111, 119 (47 SE2d 895); Cox v. State, 172 Ga. 482 (3) (158 SE 17).

Argued September 10, 1975 Decided December 2, 1975 Rehearing denied December 19, 1975 Roberts, Roberts & Rainwater, Guy Velpoe Roberts, Jr., for appellant. D. E. Turk, District Attorney, for appellee.

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., Quillian, Webb and Marshall, JJ., concur. Deen, P. J., Clark and Stolz, JJ., dissent.