Thоmas Edward Daniels was indicted for the murder of Bobby Harrison; he was convicted of voluntary manslaughter. We affirm.
1. The evidence showed that Daniels was sitting alone at the bar of a Muscogee County tavern in the late evening hours of May 26, 1979. Bobby Harrison and his friend Willie Elliott entered the tavern together and approached Daniels. Although both men were unknown to Daniels, he brought them each a beer. The evidence was in dispute as to what next transpired between Daniels and Elliоtt, but after a brief elapse of time, Daniels struck a blow with his fist to Elliott’s face which sent Elliott reeling backwards several feet. Elliott then broke a pool cue over his knee and headed toward Daniels with the “big end.” Daniels hurriedly left the tavеrn followed by Elliott. Daniels reached his truck in the tavern’s parking lot, removed his gun from the truck’s floor board, and brandished the gun at Elliott. Upon seeing the gun, Elliott fled across the parking lot. Up to this point in time, Bobby Harrison was uninvolved in the altercation between Ellictt and Daniels.
Harrison emerged from the tavern after Elliott and also *477 approached Daniels. Daniels testified that Harrison, as he approached, twice threatened to “cut” him; Daniels thrice warned Harrison not to come any closer. As Harrison began to remove his hand from his pants pocket, Daniels shot him in the face.
Harrison was between 5 and 8 feet from Daniels when he was shot. Although the evidence was in dispute as to which pocket Harrison had his hand in, the parties stipulated that an unopеned knife was found to have been in his right front pants pocket. Daniels testified, “I can’t say that I saw a knife. I saw him come out of his pocket with something that appeared to be a knife.” None of the eyewitnesses saw a knife.
Although the еvidence in this case was in dispute, we find that a rational trier of fact could have found the essential elements of voluntary manslaughter from the evidence presented beyond a reasonable doubt. Jackson v. Virginia,
2. Appellant contends that thе trial court erred in charging the jury as to voluntary manslaughter. We disagree.
“Code Ann. § 26-1102 provides that ‘A person commits voluntary manslaughter when he causes the death of another human being, under circumstances which would otherwise be murder, if he аcts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person;...’ Our Supreme Court has held that a trial judge ‘may, of his own volition and in his discrеtion, charge on a lesser crime of that included in the indictment or accusation.’ [Cit.] ‘When a homicide is neither justifiable nor malicious, it is manslaughter, and if intentional, it is voluntary manslaughter.’ [Cit.] ‘The sufficiency of the provocation and question оf “cooling time” are in all cases for the jury. Code Ann. § 26-1102.’ [Cit.] ‘On the trial of a murder case, if there is any evidence to create a doubt, however slight, as to whether the offense is murder or voluntary manslaughter, instructions as to the law of both offеnses should be given.’ [Cits.] Under the circumstances of this case, it was not error for the trial court to instruct on voluntary manslaughter.”
Ward v. State,
3. Daniels contends that the trial court committed reversible error by refusing to allow him to physically exhibit to the jury scars hе had received as the victim of an unrelated, prior stabbing. He argues that he was entitled to exhibit his scars to the jury so that they could make a completely informed judgment as to whether or not his conduct was that of a “reasonable man” in terms of his defense of self-defense. As provided in Code Ann. § 26-902 (a): “A person is justified in... using force against another when and to the extent that he reasonably believes that such . . . force is necessary to defend himself. . . against such other’s imminent usе of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself. . .”
“In cоnstruing this language it is necessary to consider the provision of Code Ann. § 26-401 (p), which defines reasonable belief. This section provides: ‘ “Reasonable belief” means that the person concerned, acting as a reasonable mаn, believes that the described facts exist.’ Under this definition the rule exemplified by the decision in
Fudge v. State,
The cases cited by Daniels in support of this enumeration are faсtually distinguishable from the instant case.
Baker v. State,
4. In his fourth enumeration Daniels asserts that the trial court erred by instructing the jury as to the legal principle of flight. Daniels testified that after he had shot Harrison, he pulled Harrison’s shirt up to see if he could help him in some way; he thought he had shot Harrison in the stomach. Daniels then got in his truck and drove home where he telephoned the police to report what had happened. Daniels explained his departure from the scene as being prompted by his fear of Elliott and his uncertainty as to Elliott’s whereabouts after the shooting.
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“Evidence of leaving the scene of a crime after it has been committed where an innocent explanation is given presents a jury question as to whether the appellant left for the innocent reason or because of a consciousness of guilt, and the court properly so charged.”
Wynn v. State,
5. Daniels cоntends that the trial court erred in denying his motions for mistrial based on statements by the prosecutor in both his opening and closing remarks to the jury which attempted to inject evidence of the deceased’s good character. In both situations the trial court instructed the jury to disregard the prosecutor’s statements relating to the character of the deceased and admonished the prosecutor to refrain from that line of discussion.
“The trial judge took the necessary purgative action by means of a thorough and forceful instruction to the jury and rebuke to the prosecutor. His language in doing so was more than sufficient to remove any improper impression from the minds of the jurors. The extent of a rebuke and instruction is within the discretion of the court, and when, as here, the improper remark is cured by timely corrective action calculated to preserve the defendant’s right to a fair trial, then we cannot say that the cоurt abused its discretion in refusing to grant a mistrial. Code Ann. § 81-1009. . .”
Benefield v. State,
6. Daniels’ sixth enumeration alleges that the trial court erred in allowing the sister of the deceased to testify and identify a certain photograph depicting her deceased brother рosing with his small child. The record discloses that this witness was asked to testify by the prosecution on the morning the trial began. The extent of her testimony was the identification of her deceased brother in two photographs — the first showing him posing with his young son and the second showing him shortly after he had been shot in the face. The record also shows that this witness began crying after having been shown the second photograph and that she had broken down and cried earlier that day when the prosecution first showed her the photographs. Daniels moved for a mistrial which the court denied. Daniels contends that the prosecution’s sole purpose in calling this witness was to create sympathy for the deceased and inflame the jury against him.
The record clearly shows that any one of several of the State’s witnesses could have identified the photographs as accurately depicting the deceased. Under the circumstances in this case, we аre
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compelled to conclude that the prosecution’s primary purpose in calling this witness was indeed to generate sympathy toward the deceased. This trial tactic, while not reversible error in this case, displayed insensitivity on the part of the prosecution toward the dignity and decorum of the proceedings as well as toward the witness. See Rules and Regulations for the State Bar of Georgia, Rule 3-107 (EC 7-36),
As to the photograph showing the deceased with his son, “photographs. . .which are posed, which are substantially different from the facts of the case, and which because of the difference might well be prejudicial. . .should not be used, and this is especially true where the situation or event sought to be depicted is simple,'the testimony adequate, and the picture adds
nothing except the visual
image to the mental image already produced.”
Eiland v. State,
7. During cross examination the prosecutor questioned Daniels regarding previous statements made to a police officer which were inconsistent with his testimony at trial. Daniels contends that the trial court erred in permitting this line of quеstioning without first ascertaining the voluntariness of the in-custody statements. Jackson v. Denno,
Judgment affirmed.