Johnson v. State

173 S.E.2d 412, 121 Ga. App. 281, 1970 Ga. App. LEXIS 1198

• Court: Court of Appeals of Georgia
• Decided: January 27, 1970
• Docket: 45062
• Status: Published

Opinions

Evans, Judge.

1. Where, as here, the only written demand made by defendant and his counsel was the addition of the word “demands” to his waiver of formal arraignment in which his request then read: “Demands . . . list of witnesses sworn before the grand jury, and pleads not guilty,” and he was furnished exactly what he demanded, that is—the witnesses sworn before the grand jury—no reversible error is shown. See Code Ann. § 27-1403 (Ga. L. 1966, pp. 430, 43Í); Prather v. State, 223 Ga. 721 (157 SE2d 734); Jones v. State, 224 Ga. 283 (161 SE2d 302). Whether or not the list of witnesses on whose testimony this charge against him is founded is the same as the witnesses sworn before the grand jury or the witnesses against him on the trial is not here decided. The error enumerated is not meritorious since it is clearly shown he was furnished the witnesses he requested.

2. Errors are enumerated on the allowance in evidence of a .38-caliber pistol as not property identified and the testimony of the expert that by microscopic examination of a bullet fired from this pistol he was of the expert opinion that the bullet identified as taken from the skull of the deceased was fired from this pistol, because the proper foundation was not laid for the expert testimony. There was direct testimony that this was the same pistol given to a witness by the accused after the shooting, that the accused had shot in the direction of the deceased, that the pistol was turned over to a police officer who testified he locked it in a safe at city hall, where it was kept until the comparison tests were made,, and a chain of witnesses testified as to its custody until it was used for the comparison test. It was thus shown to be the same pistol received from the accused and tested by the expert. A proper foundation for the introduction of the pistol and the expert testimony in regard to the comparison tests was laid. See Williams v. Southern R. Co., 99 Ga. App. 503 (109 SE2d 343); Pittman v. State, 110 Ga. App. 625 (139 SE2d 507). These enumerations of error are not meritorious.

Submitted January 13, 1970 Decided January 27, 1970 Rehearing denied February 12 and February 27, 1970. Scott & Alexander, Guy B. Scott, Jr., for appellant.

3. The evidence shows the defendant was involved in a shooting incident on the day alleged in the indictment. ■ The testimony of experts shows the deceased was killed by a bullet fired from a .38-caliber pistol which the defendant admits he owned but claimed it was being fired by another and he was firing a .22-caliber pistol. A witness testified that he did not have a weapon, did not shoot, and did not have the .38-caliber pistol' until after the shooting when the defendant gave him the pistol and suggested that they all admit shooting—he the .22-caliber pistol and this witness the .38-caliber pistol. The evidence was sufficient to authorize the jury to return a verdict of guilty of voluntary manslaughter, and none of the errors enumerated is meritorious.

Judgment affirmed.

Hall, P. J., and Deen, J., concur.