Opinion
21111.
SUBMITTED JANUARY 9, 1961.
DECIDED FEBRUARY 9, 1961.
Murder. Monroe Superior Court. Before Judge Brown.
W. B. Mitchell, for plaintiff in error.
Hugh Sosebee, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, Assistant Attorney-General, contra.
1. Where the only objection to evidence urged before the trial judge is that it is "immaterial", this court will not reverse his judgment in overruling such objection.
2. There was no evidence in the present case authorizing a charge on any phase of voluntary manslaughter, and the trial judge correctly omitted any charge on voluntary manslaughter.
3. Under the evidence and the charge given, it was not error to fail to charge on involuntary manslaughter.
4. There was evidence to support the verdict, and the trial judge did not err in overruling the general grounds of the motion for new trial.
SUBMITTED JANUARY 9, 1961 — DECIDED FEBRUARY 9, 1961.
Willie Floyd Hicks, Jr., was indicted for the murder of John Thomas Owens. The trial resulted in a verdict of guilty, with a recommendation of mercy. The defendant excepts to the denial of his motion for new trial on the usual general grounds, as amended by the addition of three special grounds.
The deceased died as the result of a pistol wound. The homicide occurred at the home of Jack McDowell and his wife, Lizzie Lou McDowell, where the defendant was living. Jack McDowell testified: The defendant and the deceased came to his home together at about 10:30 or 11 p. m., and the deceased asked and received permission to spend the night there; the defendant and the deceased were not quarreling; after they had been there about ten or fifteen minutes, the defendant told the deceased to give him his pistol; the deceased handed the pistol to the defendant; it immediately was discharged; the deceased dropped to the floor; and the defendant went out of the house. This witness stated that the shooting was an accident.
The defendant surrendered himself to the sheriff, Ray Grant, early the next morning. The sheriff stated in his testimony that the defendant made the following statement to him: "Yes, he said that he and John Thomas came down to this house of Jack McDowell's ten or fifteen minutes before the shooting, and that he had the pistol, Willie Floyd — that he asked him to give it to him and he hesitated about giving it to him, and John Thomas told him `No you are keeping it, you don't have the guts to use it,' and said `Well, I just shot him, and left.'"
Lizzie Lou McDowell testified that, when the deceased handed the pistol to the defendant, the defendant stepped back, pointed the pistol at the deceased, and shot him.
The defendant in his statement asserted that he and the deceased were good friends. In regard to the shooting, he stated: "So the night he asked me for the gun, he wanted to tote it, and I give it to him and me and him went down to Jack's, it is like our house, it is home, and I said `John Thomas, give me the gun, I am fixing to go to bed,' and just as he handed it to me I put my hand on the gun it went off. I went out the door. I had never been in no fight or trouble, no way, never fought anybody, never been mad with him, I was not mad with him, we had not been mad with each other."
1. Ground 1 of the amended motion for new trial states that a witness for the State was asked the question: "Do you know where Willie Floyd Hicks lived before he came to live with you?" To which the witness replied, "He got off the gang." Counsel for the defendant moved to rule the evidence out because it was immaterial, and moved for a mistrial; and the trial judge denied the motion. It is asserted in this ground that this evidence injected the character of the defendant in evidence without his having placed it in evidence.
The assertion that the defendant's character had not been placed in issue by him prior to this evidence is not supported by the record. The witness giving the testimony, Lizzie Lou McDowell, was examined by the defendant's attorney on cross-examination as to her knowledge of the defendant's reputation in the community, and she testified that she guessed it was good, and that she had never heard anything against him. The question eliciting the reply objected to was on redirect examination. No objection to this evidence was made on the ground that it was not the proper method to show the commission of a crime involving moral turpitude (to refute the evidence of good character.)
"All evidence is admitted as of course, unless a valid ground of objection is interposed, the burden being on the objecting party to state at the time some specific reason why it should not be admitted. A failure to make such objection will be treated as a waiver, and prevent the court, on a motion for a new trial, from inquiring as to the competency of the evidence." Andrews v. State, 118 Ga. 1 ( 43 S.E. 852); Langston v. State, 153 Ga. 127 ( 111 S.E. 561).
Where the only objection to evidence urged before the trial judge is that the evidence is "immaterial", this court will not reverse his judgment in overruling such objection. Pippin v. State, 205 Ga. 316 (6) ( 53 S.E.2d 482); Wilson v. State, 212 Ga. 157 (4) ( 91 S.E.2d 16).
2. It is contended in ground 2 that the trial judge erred in failing to charge the law of voluntary manslaughter. There was no evidence which would indicate that any phase of voluntary manslaughter was involved in the homicide, and the trial judge correctly omitted any charge on voluntary manslaughter.
3. Ground 3 assigns error on the failure of the trial judge to charge, without request, on involuntary manslaughter. It is asserted that the evidence required a charge on involuntary manslaughter for three reasons: (1) "because the evidence would authorize a conviction of involuntary manslaughter by the holding of a weapon likely to produce death in such a manner as not authorized by law"; (2) because the evidence did not show that the defendant had a license to carry a pistol; and (3) because the evidence did not show that the defendant did not have the weapon concealed.
We may quickly dispose of the two latter contentions. The evidence shows that the homicide occurred at the place where the defendant lived, and it was not unlawful for him to have possession of a pistol at such place without a license. Code § 26-5103. According to the testimony, the pistol was in the possession of the deceased until the time that the defendant asked him for it, and it was discharged immediately after the deceased handed it to the defendant, which negatives any concealment of the pistol by the defendant.
The only view of the evidence under which the defendant could be guilty of involuntary manslaughter would be that he had no intention of discharging the pistol, but that the discharge was caused by the reckless manner in which it was handled by him. Austin v. State, 110 Ga. 748 ( 36 S.E. 52, 78 Am. St. Rep. 134). In Walton v. State, 190 Ga. 746 ( 10 S.E.2d 755), in which the evidence bears a similarity to that in the present case, it was held that the homicide was either murder or accidental homicide, and the court having charged the principles of Code § 26-404, it was not error to omit to charge the law relating to involuntary manslaughter.
In the present case, the trial judge charged fully on the subject of death by accident or misfortune, and instructed the jury that, if they found that the shooting was due to an accident, or if they had a reasonable doubt that it was an accident, they should acquit the defendant. It was therefore not error to fail to charge on involuntary manslaughter. Hill v. State, 41 Ga. 484; Johnson v. State, 130 Ga. 27 (3) ( 60 S.E. 160); Drane v. State, 147 Ga. 212 (2) ( 93 S.E. 217); Fair v. State, 171 Ga. 112 (2) ( 155 S.E. 329).
Judgment affirmed. All the Justices concur.