Opinion
42673.
SUBMITTED APRIL 4, 1967.
DECIDED APRIL 18, 1967.
Voluntary manslaughter. Coffee Superior Court. Before Judge Hodges.
Arthur C. Farrar, George Jordan, for appellant.
Dewey Hayes, Solicitor General, for appellee.
1. In view of Section 10 of the recently enacted amendments to the Appellate Practice Act of 1965, as amended (Ga. L. 1967, p. 220, approved on March 30, 1967) this court will consider alleged errors relating to jury instructions or the failure to give instructions in criminal cases now pending before the court, even though the record fails to disclose objections at the trial to the instructions as given, or requests at the trial for instructions allegedly erroneously admitted.
2. Under the evidence the trial court properly limited the jury to findings of murder, voluntary manslaughter, or acquittal, including acquittal on the theory of an accidental homicide, and under such limitations isolated references to manslaughter without specifying such manslaughter as voluntary manslaughter, could in no way confuse the jury. Even if it be conceded, however, that some theory of the evidence would support a finding of involuntary manslaughter in some form, the instructions as given were more favorable to the accused by requiring acquittal unless the evidence convinced the jury beyond a reasonable doubt of guilt as to murder or voluntary manslaughter, and thus afford the accused no cause for complaint.
3. There is no merit in the enumerated error based on the failure to instruct on the law of self-defense.
4. The evidence supports the verdict and judgment, and no error of law appearing, the trial judge did not err in overruling the motion for a new trial.
SUBMITTED APRIL 4, 1967 — DECIDED APRIL 18, 1967.
When this case was here previously the court reversed a conviction of voluntary manslaughter because of error in the sentencing instructions. Carmichael v. State, 112 Ga. App. 313 ( 145 S.E.2d 62). A new trial resulted in a conviction for voluntary manslaughter on October 20, 1966, and a sentence of three to five years confinement.
On April 17, 1963, Murnteen Carmichael, the accused, following her daily custom for a number of years, drove her automobile, in which her grandmother was a passenger, from the house where she and her grandmother lived to the house where the grandmother's son lived, in order for the grandmother to remain there while the accused was at work. The decedent, Connie Lee Taylor, a daughter-in-law of the grandmother's son, also lived at this house. Upon arrival the accused parked in front of the house and remained in the driver's seat. The grandmother left the automobile and seated herself on the porch, but after some remarks between the accused and others the grandmother returned to the automobile and seated herself beside the accused. In the meantime the decedent had come to the automobile, and a heated argument was in progress between the accused and the decedent concerning reports about the accused's conduct. The decedent was standing outside the car at the driver's window. A loaded .22 caliber revolver was on the seat between the accused and her grandmother, where the accused customarily kept it for her protection. According to some of the testimony, the accused grabbed the decedent by the hair with one hand, picked up the revolver with the other, and fired two shots which struck the decedent in the head and neck, producing death almost immediately. According to other testimony and the statement of the accused at the trial, the decedent grabbed the accused by the hair with one hand and reached across the accused and grabbed the revolver, and the revolver fired twice in the course of a struggle between the accused and the decedent. From the apparent path of the bullets, as shown by the wounds and evidence on the vehicle, the revolver was fired from a position above the head of the accused, and while pointing downward and to the outside of the vehicle. The engine of the vehicle was running when the revolver was fired, although there is a conflict in the testimony as to whether the accused had ever shut it off after she parked in front of the house. Immediately following the shots the accused drove away, with her grandmother in the vehicle, and she was apprehended at her home later that same day.
The trial judge overruled a motion for a new trial, and the enumeration of errors on appeal corresponds to the grounds of the motion.
1. Headnote 1 requires no elaboration.
2. In instructing the jury the trial judge eliminated involuntary manslaughter in any form from consideration by the jury, and restricted the jury to a choice, under the evidence, of conviction of murder or voluntary manslaughter, or acquittal, including acquittal upon a determination that the shooting was accidental, unmixed with any evil design or culpable neglect by the accused. The first enumerated error is directed generally to the overruling of the motion for a new trial, and is argued on the basis that the evidence warranted instructions on the lesser offenses of involuntary manslaughter in the commission of an unlawful act and involuntary manslaughter in the commission of a lawful act. The second and third enumerated errors are directed to instructions concerning punishment for manslaughter, and findings in relation to murder, manslaughter, and acquittal, wherein the trial court used the term manslaughter without specifying that it was referring solely to voluntary manslaughter, and the accused argues that the court erred in failing to refer to manslaughter as voluntary manslaughter. The fourth through the tenth enumerations are directed to the failure to instruct on the law of involuntary manslaughter.
Since, under the instructions as given, its consideration of manslaughter as an offense was limited to voluntary manslaughter, the jury could in no way be misled by isolated references to "manslaughter" instead of "voluntary manslaughter." The real issues, as we view the case, are whether the evidence would authorize consideration of involuntary manslaughter in any form, and whether, upon determining or assuming that the evidence authorized consideration of involuntary manslaughter, its omission from the instructions as given was harmful to the accused.
Involuntary manslaughter is an unintentional homicide resulting from the commission of an unlawful act, with certain exceptions deemed to be murder, or an unintentional homicide resulting from the commission of a lawful act in an unlawful manner, which might produce such a consequence. Code § 26-1009. A determination by the jury that the death was accidental, absent any evil design, intention, or culpable neglect, requires a finding of not guilty of any offense. Code § 26-404. As we view the evidence, excluding consideration of murder, the homicide resulted from the intentional acts of the accused in shooting the decedent in a fit of passion during the course of an altercation, or the shooting occurred accidentally while the accused was attempting to wrest possession of the revolver from the decedent. Under either of these views involuntary manslaughter in either form as an offense is eliminated, and the incident is either voluntary manslaughter ( Code § 26-1006) or an accidental shooting. The latter view conforms to the admissions of the accused made to the sheriff shortly after the incident, her statement at the trial, and is supported to some extent by other evidence. Under the evidence instructions on involuntary manslaughter were not required. See Scott v. State, 210 Ga. 137 (2) ( 78 S.E.2d 35); Robinson v. State, 124 Ga. 787 ( 53 S.E. 99); Golatt v. State, 130 Ga. 18 (2) ( 60 S.E. 107); Washington v. State, 137 Ga. 218 (2) ( 73 S.E. 512); Drane v. State, 147 Ga. 212 (2) ( 93 S.E. 217); Goodwin v. State, 148 Ga. 33 (1) ( 95 S.E. 674); Harris v. State, 184 Ga. 165 (2) ( 190 S.E. 554); Elder v. State, 212 Ga. 610 (4) ( 94 S.E.2d 730); Hicks v. State, 216 Ga. 574 (3) ( 118 S.E.2d 364); Metts v. State, 74 Ga. App. 708 (2 a) ( 41 S.E.2d 328); Sweat v. State, 103 Ga. App. 747 (2) ( 120 S.E.2d 653).
In reading the foregoing conclusion we are not unmindful of the numerous holdings to the effect that instructions as to a particular degree of homicide should be given in the event of any doubt as to whether the evidence raises an issue as to such degree of homicide. See Freeman v. State, 158 Ga. 369 (2a) ( 123 S.E. 126); Graham v. State, 34 Ga. App. 598 (2) ( 130 S.E. 354); Cain v. State, 39 Ga. App. 128 (2) ( 146 S.E. 340); Jackson v. State, 43 Ga. App. 468 ( 159 S.E. 293); Lee v. State, 70 Ga. App. 61 ( 27 S.E.2d 347); Davis v. State, 93 Ga. App. 253 (3) ( 91 S.E.2d 316). But if we concede in this case, in arguendo, that the evidence did indicate or could support a finding of involuntary manslaughter in one form or another, the failure to submit these issues to the jury was actually favorable to the accused, for unless the jury was convinced beyond a reasonable doubt that the essentials of either murder or voluntary manslaughter were present, it had no alternative but to acquit the accused, either on the theory of an accidental shooting or for other reasons, and under these circumstances the accused has no just ground for complaint. Hill v. State, 41 Ga. 484. 505 (10); Fair v. State, 171 Ga. 112 (2) ( 155 S.E. 329); Harris v. State, 184 Ga. 165, supra; Walton v. State, 190 Ga. 746 (2) ( 10 S.E.2d 755); Hicks v. State, 216 Ga. 574, supra.
There is no merit in any of the enumerated errors discussed in this division of the opinion, and the accused has abandoned the eleventh enumerated error, asserting a failure to instruct as to accidental homicide, which controverts the record showing that the trial judge actually did so instruct the jury.
3. There is no merit in the twelfth enumerated error, based on the failure to instruct on the law of self-defense.
4. The evidence supports the verdict and judgment, and no error of law appearing, the trial judge did not err in overruling the motion for a new trial.
Judgment affirmed. Bell, P. J., and Pannell, J., concur.