Birdsong v. State

Full title: BIRDSONG v. THE STATE

Court: Court of Appeals of Georgia

Date published: Nov 10, 1976

231 S.E.2d 813 (Ga. Ct. App. 1976)

231 S.E.2d 813

Opinion

53023.

ARGUED NOVEMBER 1, 1976.

DECIDED NOVEMBER 10, 1976. REHEARING DENIED DECEMBER 8, 1976.

Voluntary manslaughter. Decatur Superior Court. Before Judge Culpepper.

Conger Conger, J. Willis Conger, Peter Z. Geer, for appellant.

A. Wallace Cato, District Attorney, for appellee.

CLARK, Judge.

Defendant, indicted and tried for murder of her husband's innamorata, was convicted of voluntary manslaughter. Appellant asserts the trial court erred in charging the jury on the lesser included offense of voluntary manslaughter. Held:

"On the trial of a murder case, if there be any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given the jury. Gresham v. State, 216 Ga. 106 ( 115 S.E.2d 191)." Banks v. State, 227 Ga. 578, 580 ( 182 S.E.2d 106); Loudermilk v. State, 129 Ga. App. 552 ( 200 S.E.2d 302). There was sufficient evidence to warrant the trial court's charge on voluntary manslaughter. It is within the trial court's discretion to charge on a lesser-included crime. State v. Stonaker, 236 Ga. 1 ( 222 S.E.2d 354). Accordingly, the charge was not erroneous. Judgment affirmed. Bell, C. J., and Stolz, J., concur.

ARGUED NOVEMBER 1, 1976 — DECIDED NOVEMBER 10, 1976 — REHEARING DENIED DECEMBER 8, 1976 — CERT. APPLIED FOR.