Opinion
31245.
DECIDED SEPTEMBER 10, 1946.
Involuntary manslaughter; from Gwinnett Superior Court — Judge Pratt. February 16, 1946.
Alton G. Liles, for plaintiff in error.
Hope D. Stark, Solicitor-General, contra.
The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial containing the general grounds only.
DECIDED SEPTEMBER 10, 1946.
Dewitt Lee, a negro, was indicted for murder and convicted of involuntary manslaughter in the commission of an unlawful act. His motion for a new trial, based upon the general grounds only, was overruled, and that judgment is assigned as error.
The evidence disclosed the following facts: On August 7, 1942, the defendant was working at U. L. Wofford's filling station in the City of Buford, Gwinnett County, Georgia. On the same day, Albert Smith, a negro, drove his employer's automobile to said station for the purpose of exchanging the car's battery. Wofford showed Lee and Smith how to exchange the battery, and then left the station and was absent about fifteen minutes. When he left the station, Smith and Lee were working on the car and they were apparently friendly and in good humor. When Wofford returned, he found the door of the station closed, and when he got inside he found the body of Smith lying on the floor and discovered that he had been shot in the neck with a shotgun and had bled to death. The defendant had disappeared and could not be located until he was arrested a few days later in Atlanta. When arrested, the defendant denied that he was Dewitt Lee, or that he had ever been in Buford, and said that his name was Jimmie Rayford. When later on the sheriff from Buford arrived in Atlanta, the defendant admitted that he was Dewitt Lee and had shot and killed Smith with the shotgun. The gun had been in the filling station for several weeks and usually was unloaded. There was no evidence that the defendant knew that the gun was loaded on the day of the homicide. The evidence further showed that Lee and Smith knew each other well and were good friends, that Smith frequently came to the station to get gas and oil for his employer's car, and that he and the defendant often joked and played pranks with each other, and with the other negro boys who came to the station.
The defendant in his statement to the jury said that Smith told him that he wanted to see the shotgun, and he (the defendant) reached back and got it and just handed it over the counter, and while he was so handling the gun it went off and the bullet hit Smith. "I seen the blood and wasn't nobody there but I and him, and I got scared and ran off and went to my aunt's at Phoenix City. She told me to go back and give myself up, and when I was arrested in Atlanta I was going back." The defendant further stated that he did not know that the gun was loaded, that he and Smith never had an argument, that they were good friends and always were playing together; "in fact me and all of them niggers were all the time playing around there."
This is the second appearance here of this case. In Lee v. State, 70 Ga. App. 61 ( 27 S.E.2d 347), where the accused was convicted of involuntary manslaughter in the commission of an unlawful act, this court held: "Under the evidence and the defendant's statement to the jury, the offense of involuntary manslaughter in the commission of a lawful act without due caution and circumspection was also involved, and the court erred in failing to instruct the jury upon that branch of involuntary manslaughter."
Upon the trial now under review, the court evidently charged upon that branch of involuntary manslaughter, since there was no special assignment of error in the motion for a new trial. The evidence and portions of the defendant's statement to the jury authorized a finding that the defendant in "horse play," and not knowing that the gun was loaded, intentionally pointed it at Smith, without any lawful reason therefor.
"Any person who shall intentionally point or aim a gun or pistol, whether loaded or unloaded, at another, not in a sham battle by the military, and not in self-defense or in defense of habitation, property, or person, or other instances standing upon like looting of reason and justice, shall be guilty of a misdemeanor." Code, § 26-5107.
The denial of a new trial was not error.
Judgment affirmed. MacIntyre and Gardner, JJ., concur.