Opinion
19293.
SUBMITTED APRIL 9, 1956.
DECIDED MAY 15, 1956.
Murder. Before Judge Gray. Worth Superior Court. January 2, 1956.
David C. Jones, P. B. Ford, for plaintiff in error.
W. J. Forehand, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, contra.
1. Special ground 1 of the motion for new trial complains of the court's failure to charge, without request, the following: "I charge you further that it is the contention of the defendant that his wife, Mary Cooper, was killed without any intention by him to do so, while attempting to protect himself against a felonious assault alleged to have been made by Mary Cooper upon the defendant, and that, if you should believe this were true, the defendant should be acquitted." It is alleged that this was error and its omission was harmful because such a charge was required as a matter of law upon a vital and material issue in the case, and that a failure so to charge deprived the movant of an instruction he was entitled to have given. An examination of the entire charge as given by the trial judge reveals that he charged fully and correctly on the law of accident, self-defense, and the fears of a reasonable man. Hence, there is no merit in this ground of the motion.
2. The next assignment of error, in special ground 2 of the motion for new trial, complains that the judge in his charge said to the jury: "If the jury should believe that the defendant killed the person named in the indictment by shooting her with a shotgun; that at the time of the killing the defendant was in no danger from the person killed; that the person killed was not committing or attempting to commit a serious personal injury on the person of the defendant; . . ." This ground of the motion is too incomplete to be considered by this court. It is only a portion of that part of the charge actually given by the judge on this phase of the case; and it is well settled that fragments of the court's charge on any rule of law involved in the case cannot be isolated by the movant and considered by a reviewing court. In Wilson v. State, 69 Ga. 224, 240 (7), it was said: "To disconnect a sentence in the judge's charge from what precedes and follows it, gives no just conception of its meaning, import or legal effect, and this court cannot consider it, except as it stands related to the other instructions given to the jury. Thus considered it is not error." To the same effect, see Nixon v. State, 75 Ga. 862; Suple v. State, 133 Ga. 601 ( 66 S.E. 919); Butterworth v. State, 200 Ga. 13 ( 36 S.E.2d 301); Jones v. State, 209 Ga. 685 ( 75 S.E.2d 429).
3. Special ground 3 alleges that the court erred in failing to charge, without request, the law of manslaughter, as defined in Code §§ 26-1006 and 26-1007, and the punishment therefor as defined in Code § 26-1008, since there was evidence requiring such a charge, and that the movant was injured by the failure so to charge. In Cornelius v. State, 193 Ga. 25, 29 ( 17 S.E.2d 156), it was held: "Manslaughter as defined in Code § 26-1006, includes the entirely different crimes of voluntary manslaughter and involuntary manslaughter. So also voluntary manslaughter, as defined in § 26-1007, and punished as prescribed in § 26-1008, includes voluntary manslaughter where the killing is in the course of mutual combat, or under various circumstances where there is no mutual combat. Consequently the ground of the motion for a new trial quoted above does not more definitely specify wherein it is contended that the court erred than if it had merely stated that the court erred in failing to charge the law of voluntary manslaughter. It fails to specify definitely wherein the court erred, and therefore is insufficient to present any question for decision." In support of this ruling, see the many cases decided by this court as there cited. Hence, this special ground is too indefinite to raise any question for consideration by this court, and it is, therefore, without merit. See also Wright v. State, 210 Ga. 212 (2) ( 78 S.E.2d 494), and the cases there cited.
4. The evidence was amply sufficient to authorize the verdict, and the general grounds of the motion are therefore without merit.
Judgment affirmed. All the Justices concur.
SUBMITTED APRIL 9, 1956 — DECIDED MAY 15, 1956.
Paul Cooper was indicted in the Superior Court of Worth County for the murder of his wife Mary Cooper. The jury convicted him of that offense without a recommendation, and he was sentenced to be electrocuted. In due time, he moved for a new trial on the usual general grounds and amended his motion by adding three special grounds. A new trial was denied, and he excepted. In substance, the State's evidence and the defendant's statement to the jury show the following facts: Mary Cooper was killed on Saturday night April 9, 1955, between nine-thirty and ten o'clock. On the same night about twelve o'clock and on the day following her death, on inquiry being made concerning her absence from home, the defendant told her brother and mother that they knew where she was — they had sent her away. Later he told others that she was visiting friends in Jacksonville, Florida. He continued to make the latter statement until her body was found on April 15, 1955, where he had concealed it under some hay in a vacant house several miles away from his home. After her body was found, he made another statement, in which he said that she was accidently killed while he was trying to take a shotgun away from her, with which she had threatened to kill him. On Wednesday prior to the homicide, the defendant and his wife visited her mother. While there and in the presence of the defendant, she told her mother that the defendant had recently drawn a gun on her. He told her not to be telling things there which happened in their home, but he did not deny the truthfulness of her statement.
According to the defendant's statement to the jury, the deceased was sitting on the porch of their home when he undertook to take the shotgun away from her, but twenty or twenty-five feet back of their home the investigating officers found a large pool of blood. From fifty to seventy-five feet back of their home they found two pairs of women's shoes which had been freshly buried in the ground under bushes, and at another place in some straw they found four 12-gauge shotgun shells loaded with number eight shot. They also found in his home a single-barrel 12-gauge chokebore shotgun, which had recently been washed in kerosene and greased and a pair of men's shoes which had recently been shined and on which there were spots resembling blood. The investigating officers also testified that they took a floor mat out of the back part of an automobile which the defendant used on the night of the homicide. For examination, these articles were delivered to Dr. Herman Jones, Director of the Georgia Crime Laboratory. Dr. Jones testified that he found blood stains on the gun, the defendant's shoes, and the floor mat, but said that he could not be positive it was human blood since they had undergone recent changes. The mother of the deceased testified that, after her daughter disappeared, she found a bloody shirt, known by her to be the defendant's, and that he took possession of it and hid it. Dr. Jones testified that the deceased died from a shotgun wound in the side of her face slightly in front of the left ear. No wadding from the shell was in the wound. The wound, including surrounding pellet holes, was four inches in diameter. From tests he made, using the defendant's shotgun and firing shells of the same manufacture as those found at his home and containing number eight shot, Dr. Jones testified that the wound inflicted on the deceased was caused by the blast of a shotgun fired approximately twelve feet away from her. He also testified that, from efforts he made to fire the defendant's shotgun, it would not likely discharge by accident since it had a weak spring and it was necessary to "fan" the trigger in order to get sufficient hammer pressure.
In his statement to the jury, the defendant said that, after the killing, he went off with some friends to gamble, but later during that night returned to his home and moved his wife's body to the place where it was afterwards found. He also stated to the jury that he did not call the police, but moved and hid her body because he had been drinking.