Opinion
25154.
ARGUED APRIL 15, 1969.
DECIDED MAY 8, 1969.
Murder. Crisp Superior Court. Before Judge McMurray.
Wright, Reddick Faircloth, Mallon Faircloth, for appellant.
D. E. Turk, District Attorney, Arthur K. Bolton, Attorney General, Marion O. Gordon, Courtney Wilder Stanton, Assistant Attorneys General, for appellee.
Bobby Spivey was indicted for the murder of Lizzie Pearl Bass. He was found guilty with a recommendation of mercy and sentenced to life imprisonment. His motion for a new trial on the general grounds and one special ground was overruled, and he brings his case here for review.
In giving his version of the shooting, the defendant, in his statement to the jury, said, "Well I wasn't there at the time, well I was off, and I came home, and I told her I was going back off, down to the free show, they had a free show down on 16th, a carnival, so she asked me not to go, to stay there with her that night, so I told her I would be right back, I wouldn't be gone long, so, the gun was in my back pocket, and she seen it, and I got to the door, she went to get it, and I got it, pulled it out of my pocket, had it in my hand, she asked me to leave the gun there, so I said, `Bill you know how guys pick at me, I need something sometimes.' Most of the time when I go out without anything to protect me, I most give the thing to Bill, so she caught me by my left arm and pulled me back, she was sitting down in the chair, well it's a kinda chair, I was leaning over talking to her then, and my hands was on the arm of the chair, both of them, she had a hold of this arm, and she turned it loose, turned this arm loose and caught the one that the gun was in and pulled it, and when she pulled it, we was tussling over the gun and the gun went off."
The court instructed the jury on the law relating to accident and misfortune, and that if they found that the deceased lost her life through accident or misfortune they should find the defendant not guilty. Held:
1. The court having fully charged the jury on the subject of death by accident or misfortune it was not error, as complained of in the special ground of the motion for a new trial for the court to fail to charge on involuntary manslaughter. Drane v. State, 147 Ga. 212 (2) ( 93 S.E. 217); Hicks v. State, 216 Ga. 574 ( 118 S.E.2d 364). See also Johnson v. State, 130 Ga. 27 (3) ( 60 S.E. 160); Fair v. State, 171 Ga. 112 (2) ( 155 S.E. 329).
2. The verdict is fully supported by the evidence.
3. It was not error to overrule the motion for a new trial.
Judgment affirmed. All the Justices concur.