Voluntary manslaughter. The appellant, Patricia Bradham, was convicted of killing her divorced husband by shooting him fatally three times with a .38 caliber pistol. She raises sixteen enumerations of error. Held:
1. In her first enumeration, appellant raises the sufficiency of the evidence to support the conviction. Ms. Bradham does not dispute that she shot her husband but urges that she acted in defense of herself and her children and alternatively, in defense of her domicile. The evidence was in dispute as to whether Ms. Bradham acted in anger and intentionally out of that anger as well as frustration or in defense of person or habitation. We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal this court is bound to construe the evidence with every inferеnce and presumption being in favor of upholding the jury’s verdict.
Wren v. State,
2. Ms. Bradham complains in her second enumeration of error that the trial court gave a confusing charge on the defense of justification by combining the charge on defense of person and defense of habitation, during the course of which the court omitted critical elements of those defenses. The record does not support this contentiоn. The trial court gave full instructions, in separate segments, on the affirmative defense of self-defense and defense of habitation. These instructions were received without complaint and are basically in the language of the applicable statutes. After giving these complete and legally appropriate charges, the trial court *90 summarized, giving the substance of the previous charges on justification. It is this summary that is the subject of the enumeration of error.
When a charge as a whole substantially presents issues in suсh a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as possible, a reviewing court will not disturb a verdict amply authorized by the evidence.
Todd v. Fellows,
3. In her third enumeration of error, Ms. Bradham asserts the trial court erroneously denied a challenge for cause against a juror, requiring her to utilize one of her peremptory challenges needlessly. The juror in question answered a question to the effect that because he had three sons who were law enforcement officers in another county, he would be inclined to give more credence to a police officer’s testimony, than to a non-police witness. No further question was asked of this juror by the defendant though there is no indication of record that she was precluded from doing so. The juror had previously been asked if he were perfectly impartial as between the state and the defendant and had answered that question in the affirmative. The defense did not explore whether the witness could not set aside any potential bias following an oath to act impartially and the charge of the court. On its face then, the record indicates the witness was statutorily qualified, but subject to possible challenge.
Sullens v. State,
4. The fourth through sixth enumerations of error complains of the refusal to grant motions for mistrial. It is alleged that the court erroneously allowed five rebuttal witnesses to testify for the state who were not listed on the list of witnesses demanded by the defendant and furnished by the state. Four of these witnesses were called *92 only after the appellant had testified as to the violent character possessed by the deceased and were called for a limited purpose as rebuttal witnesses to show that' the deceased possessed a peaceable and law-abiding character. While the fifth witness had been available from the first day of the multiple day trial, he too was called only in rebuttal as a character witness. Appellant argues that she was not allowed to interview the witnesses prior to their testimony. Hоwever, the record shows that appellant did not simply request the opportunity to interview the witnesses, but in fact requested a continuance so that the defense could investigate the background of each witness as well as interview them.
It is the law of this state that thе calling of rebuttal witnesses whose names do not appear on the witness list does not constitute error.
Mize v. State,
5. Appellant complains in her seventh enumeration that it was error to allow the state to waive its opening argument. Thе appellant urges that by waiving opening argument, the defendant is denied the right to rebut the arguments advanced by the state while the state has the unfair advantage of rebutting the arguments advanced by the defendant. She would seek to limit argument by the state in such circumstances to matters in rebuttal only and not a full and ranging argument on all issues by the state.
We note initially that, in most jurisdictions, it is common practice for the state to waive opening argument. Nevertheless, there is a paucity of guidance in this state as to the effect of such а waiver. In the case of Hale v. United States, 410 F2d 147 (cert. den.
6. In her eighth enumeration of error, Ms. Bradham argues that the court’s preliminary instructions to the newly selected jurors, wherein the court informed the jury that a defendant enters upon trial with a presumption of innocence which remains until overcome by cоmpetent evidence, effectively instructed the jurors to disregard the evidence offered by the defense if, in the course of the trial, the state’s evidence overcame the presumption of innocence. While ingenious, this argument is without merit. The principle of law as given is eminently correct. The subsequent instructions to the jurors on the presumption of innocence and burden of proof, together with instructions on reasonable doubt, could leave no confusion in a juror’s mind that all the evidence must be considered in determining the defendant’s guilt or innocence.
7. Similarly, Enumeration of error No. 9 complains that the trial court removed from the jury’s consideration all documentary evidence offered by the parties and particularly that offered by the defense when it instructed the jurоrs that they would get "the facts from the witnesses who testify.” This portion of the charge related
*94
to the function of the judge and that of jury in establishing the law of the case and ascertaining the facts. Taken out of context, this portion of the charge conceivably could be misleading. However, the trial court expressly instructed the jury that the evidence consisted of all the testimony received from the witnesses and the exhibits admitted during the trial by the court. The charge of the court when considered in its entirety was full and fair and correctly presented to the jury the applicable principles of law, and that which it may have lacked when divided was supplied when the entire charge was united. See
Atlanta Transit System v. Hines,
8. Enumeration of error 10 urges that the trial court unlawfully expressed an opinion when in qualifying the prospective jurors, the court referred to the deceased as a "victim.” Appellant argues that the shooting of the deceased was in self-defense, hence not unlawful, and that only an unlawful act can produce a "victim” within a criminal law context. With this argument we are unable to agree. Webster’s defines "victim” as "one that is injured, destroyed, or sacrificed under any of various conditions.” No criminal connotation appears under any definition in Webster’s and we decline to impute such a meaning to the use of the term "victim.” In its worst light, the use of the term "victim” constituted no more than a "lapsus linguae.” The language was called to the attention of the court which promptly gave adequate curative instructions to the jurors. Appellant chose not to pursue the possibility of jury contаmination and did not voir dire on the point. Appellant moved for a mistrial and challenged the array based upon alleged disqualification.
The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial.
Gassaway v. State,
9. In Enumerations 11 through 14, appellant complains of the refusal by the trial court to give certain requested instructions. The substance of each of these requested instructions was given by the trial court in legally correct and appropriate language in its charge to the jury though not in the language requested. Where the charge given substantially covers the applicable principles, failure to give requested instructions in the exact language requested is not error.
Sullens v. State,
Judgment affirmed.