Marshall Hewlett Herrin appeals his conviction and sentence to life imprisonment for the murder of Larry William Wingfield. Held:
1. The first enumeration, asserting that the trial judge "erred in refusing to grant a new trial on the ground that a prejudicial photograph, showing evidence of other unrelated crimes, was admitted in evidence over objection of defense counsel” is without merit.
The objection made at the trial was that the photograph “ had no bearing whatsoever in this particular case, and it has not even been identified.” Counsel concedes in argument before this court relevancy and identification, in that the picture depicts the contents of a luggage compartment of an automobile connected with the homicide containing several pairs of gloves which tend to explain the absence of fingerprints on the vehicle. He insists, however, that the other things depicted, a sledge hammer, a crowbar, and a lock punch, are evidence of the unrelated crime of possession of tools commonly used in the commission of burglary, theft, or other crimes.
The basic elements of the above offense which the photograph allegedly depicts are possession coupled with an intent to make use thereof in the commission
*477
of a crime. Code Ann. § 26-1602. The photograph at the most discloses possession, not intent, but even if we assume that it depicts a crime committed by the defendant, there was no timely objection in the trial court on this ground. The failure to make a specific and timely objection is treated as a waiver.
Hicks v. State,
Furthermore, when evidence is offered, part admissible, and part inadmissible, and the objection is to the evidence as a whole, it is not error to admit the whole.
Finney v. Blalock,
2. The third enumeration, asserting error on an abuse of discretion in overruling the motion for new trial as sought on the ground of newly discovered evidence, is also without merit.
The indictment alleges that the offense occurred on June 11, 1972. The trial took place on June 27, 1972. The affidavit of Mrs. Sylvia T. Herrin, the wife of the defendant, dated November 27,1972, discloses that on June 11,1972, Billy Andrews told her that Herrin had killed Wingfield, but that if he cared for her and the Herrins’ infant child "he better keep his mouth shut.” On June 15, 1972, he repeated this, coupled with the threat that otherwise he would kill her and the child. On the day of trial he again repeated this threat. The affidavit of Mrs. Shirley Andrews, widow of Billy Andrews, dated November 25,1972, discloses that Billy Andrews told her on June 11,1972, that he shot Larry Wingfield, that it was her fault, and that he threatened to kill her. The affidavit of Mrs. Sandra C. McClellan, dated November 20, 1972, discloses that during the night of June 10-11, 1972, her husband came back home and told her that Billy Andrews shot Wingfield; that on Sunday morning, June 11,1972, Billy Andrews came to their home, told her husband that he was taking Herrin’s automobile, and that if McClellan knew what was good for him and his family he would *478 keep his mouth shut and Herrin would "come out of it all right because he didn’t do it and they can’t prove it.” This deponent also stated that she received a note in her mail box the day before trial stating that she "better not appear in court.” The first affidavit of Dan Angel, a former DOI agent, is dated December 16,1972. In it he states that Mrs. Barbara Hubbard Martin, a prosecution witness, told him she would lie in court to convict Herrin. Angel had testified on cross examination that she never made this statement. Angel also states in this affidavit that Mrs. Shirley Andrews told him that Billy Andrews killed Wingfield and threatened to kill her if she talked. In a second affidavit, dated December 29, 1972, Angel stated that he received the information from Mrs. Andrews before Herrin’s trial, and that her statements to him were based on what Billy Andrews told her.
Without here stating the six elements repeated in
Bell v. State,
The requirements as stated in
Bell,
supra, as well as
Burge v. State,
In reaching the conclusion here made we have read and considered the majority opinion of the United States Supreme Court in Chambers v. Mississippi,
3. The sole issue raised by the second enumeration is whether the evidence supports the verdict. The defendant was with the victim on the night of the homicide, and according to the testimony of Mrs. Martin and the deceased’s sister he told them the night of the homicide that he shot Wingfield. At this time he had blood on his shirt and a gun in his hand. In his unsworn statement to the jury he did not deny or explain this extrajudicial admission, but stated instead that he did not shoot Wingfield, who was one of his best friends, and did not know who shot him, but "I have my own idea, but I can’t say.” Whether to believe him or the witnesses for the State was for the jury. The evidence supports the verdict, and the trial judge did not err in overruling the motion for a new trial.
Judgment affirmed.