BRYAN v. STATE

Robert Frank Bryan was convicted of murder without a recommendation. The deceased was Nicholas A. Pahno, who was shot and killed in his store in Savannah about midnight. There was testimony of a witness that, just prior to the shooting, he saw the accused and the deceased in the store, that the accused had a pistol in one hand and the other hand on the cash register, and that the witness became frightened and ran away. A confession was introduced, in which the accused admitted the killing and robbery of the deceased. There was expert testimony that the pistol found in the possession of the accused was the pistol that fired the bullets that killed the deceased. The accused in his statement denied the killing, stating that he was elsewhere at that time, and that the confession was not voluntary, but induced by threats and coercion. In accounting for the possession of the pistol and certain money which had been traced to him, he said that the night the deceased was killed another person told the accused that this person had killed the deceased, and, by threats, had required him to take the pistol and money.

ATKINSON, Presiding Justice. (After stating the foregoing facts.)

1. The facts were questions for the jury to pass upon, and the evidence was sufficient to authorize the verdict.

2. Passing to the second ground of the amended motion, the first being an amplification of the general grounds, error is alleged in the admission in evidence of a photograph of the deceased with clothes pulled back so as to show the location of the wounds; the objection being that, death and location of the wounds already having been proven, the picture was introduced for the purpose of inflaming the minds of the jury, and was endowed with no other probative value.

Photographs when properly identified by preliminary proof, as showing an accurate representation of an object which is material to the issue, are admissible. Johnson v. State, 158 Ga. 192 (2) ( 123 S.E. 120). The location of the wounds was material to the issue. Franklin v. State, 69 Ga. 36 (1) (47 Am. R. 748); Butler v. State, 142 Ga. 286 (9) ( 82 S.E. 654); Shafer v. State, 193 Ga. 748 (7) ( 20 S.E.2d 34); Russell v. State, 196 Ga. 275 (1) ( 26 S.E.2d 528); Weaver v. State, 199 Ga. 267 (3) ( 34 S.E.2d 163). To exclude the photographs on the ground that there had already been testimony as to the location of the wounds, would, in effect, preclude the State from establishing a material fact by more than one source of evidence. To exclude it on the ground that it would inflame the minds of the jury, would prevent the State from establishing facts material to the issue. A relevant and material fact is not subject to an objection that it would inflame the minds of the jurors.

3. The third special ground alleges error by the admission in evidence of a confession. The evidence objected to is not set forth in the amended motion, but referred to as being contained in the brief of evidence. Under repeated rulings it has been held that a ground of a motion for new trial complaining of the admission of testimony must be complete within itself and not such as to require the reviewing court to refer to the brief of evidence in order to determine admissibility. Accordingly, no question is properly presented.

4. Error is assigned on the refusal of the court to grant a mistrial on account of the argument of the solicitor-general, as follows: "Gentlemen, with our system in Georgia, life imprisonment does not mean that this boy, if sentenced to life imprisonment, will stay there for life. If it did, that would be enough punishment, because I believe that, if he spent his whole life in prison, that would be worse than taking his life. With our system in Georgia, a man is entitled to parole or pardon after seven years, and when his application is put in, all the judges or interested parties are usually out of office and no one recalls the facts in the crime. If this jury sentenced this defendant to life imprisonment and he should be given his release on parole in seven years, you would be turning him loose upon society after a few years imprisonment." The solicitor-general also said: "That if they felt any sorrow for the defendant in this case, he wanted them to remember the gruesome picture of the deceased lying on the floor of his shop (the picture of the body after it had been moved and turned over), and that, if `you go further than guilty in writing (the verdict), I want you to pick up this picture and stop writing there. Look at that picture. This might happen to me [you] or any man in this community.'" The solicitor-general further said: "You did not do it (the murder), I did not do it, he (pointing to the defendant) did it. This poor old defenseless man who was harming no one."

Assuming, though not deciding, that a motion for mistrial was timely and properly made by objecting to three separate portions of the argument after the argument was concluded, still it would not be error to refuse to declare a mistrial, under the rulings in McLendon v. State, 205 Ga. 55 (5) ( 52 S.E.2d 294), and cases therein cited. See also Hicks v. State, 196 Ga. 671 (2).

Judgment affirmed. All the Justices concur, except Head, J., who dissents. Wyatt and Almand, JJ., concur specially.