Id. (citation and punctuation omitted). See also Bonner v. State, 311 Ga. 466, 469-70 (3) (858 S.E.2d 496) (2021) (trial court did not err in refusing to charge on accident where, other than appellant's conclusory statement, no evidence suggested that the gun malfunctioned or that the shooting was accidental); Stewart v. State, 261 Ga. 654, 654 (2) (409 S.E.2d 663) (1991) (no accident charge required where defendant said pre-trial that he aimed a loaded gun at the victim's face to show her what "being under the gun" was like and also testified that he pulled a loaded gun across his lap to show her what "being under the gun was like"; both scenarios show criminal negligence). Cf. Schmitt v. State, 318 Ga. 835, 840-42 (1) (901 S.E.2d 102) (2024) (trial court error in denying accident charge as defense to malice murder count was not harmless where appellant's theory of accident did not rest on conduct that was criminally negligent).
And while Mills initially denied pointing the gun at the victim and said he kept the gun by his side, he later admitted that he did point the gun at the victim's head and that it went off when she smacked it away. Misuse of a firearm in the manner described by Mills shows a degree of culpability that constitutes criminal negligence. See Stewart v. State, 261 Ga. 654, 654 ( 409 SE2d 663) (1991) (holding that the trial court was not required to give an accident instruction where the defendant said pre-trial that he aimed a loaded gun at the victim's face to show her what "being under the gun" was like, but then testified at trial that while sitting next to the victim, he pulled a loaded gun across his lap, planning to show her what "being under the gun was like," and the gun went off when he was putting it in his hand, because under both scenarios, the defendant showed an utter disregard for the victim's safety which was criminally negligent). Accordingly, the trial court did not err in rejecting Mills's request to instruct the jury on the affirmative defense of accident.
New v. State, 260 Ga. 441, 442 (1) ( 396 S.E.2d 486) (1990). See also Brooks v. State, 262 Ga. 187, 188 (3) ( 415 S.E.2d 903) (1992); Stewart v. State, 261 Ga. 654 (2) ( 409 S.E.2d 663) (1991). Appellant's evidence likewise would not authorize a charge on the defense of accident. If, as appellant seemingly contended, he was misidentified as the perpetrator of the offense, then he did not fire the shot which killed the victim, whether accidentally or otherwise.
(Emphasis supplied.) Stewart v. State, 261 Ga. 654 ( 409 S.E.2d 663) (1991); New v. State, 260 Ga. 441, 442 ( 396 S.E.2d 486) (1990). The jury was clearly charged that it had to find the killing intentional in order to convict the defendant of murder.
However, this is not a case in which criminal intent must necessarily be inferred by McBurnette's act of turning around quickly to keep the victim from hitting him, as he claimed. Compare Davis, supra at 279-280 (3) (instruction on accident not warranted where defendant fatally stabbed victim); Stewart v. State, 261 Ga. 654 (2) ( 409 S.E.2d 663) (1991) (charge on accident not required where defendant fatally shot victim); New v. State, 260 Ga. 441, 441-442 (1) ( 396 S.E.2d 486) (1990) (defense of accident inapplicable where defendant shot victim). Accordingly, since there was some evidence to support McBurnette's claim of accident, the trial court erred in failing to charge the jury on this defense.
By arming herself to enforce her order that Mathis leave the trailer, Johnson showed utter disregard for Mathis' safety and criminal negligence that precluded a charge on accident. See Stewart v. State, 261 Ga. 654 (2) ( 409 S.E.2d 663) (1991). Even assuming without deciding that the requested accident charge was both authorized by and adequately adjusted to the evidence, it is not complete.
A jury could not find that his actions and manifested intent constituted an accident or simply misfortune. New v. State, 260 Ga. 441 ( 396 S.E.2d 486) (1990). See also Stewart v. State, 261 Ga. 654 ( 409 S.E.2d 663) (1991); Sumner v. State, 210 Ga. App. 856 ( 437 S.E.2d 855) (1993). In Teasley v. State, 228 Ga. 107 ( 184 S.E.2d 179) (1971), defendant shot at a locked metal box for the purpose of opening it, whereas Moore shot at the interior of the house and at the people inside.
Moreover, there was clearly no prejudice, because the medical examiner testified that the first shot to Jefferies's head inflicted a fatal wound and that the second shot, even if it was accidental, only hastened his death. But see Stewart v. State, 261 Ga. 654, 654, 409 S.E.2d 663 (1991) (holding that the trial court was not required to give an accident instruction where the defendant said pre-trial that he aimed a loaded gun at the victim's face to show her what “being under the gun” was like, but then testified at trial that while sitting next to the victim, he pulled a loaded gun across his lap, planning to show her what “being under the gun was like,” and the gun went off when he was putting it in his hand, because under both scenarios, the defendant showed an utter disregard for the victim's safety which was criminally negligent). (d) Finally, Appellant maintains that trial counsel was deficient in failing to present evidence about two of the victims' alleged acts of violence against third parties as authorized by Chandler v. State, 261 Ga. 402, 407, 405 S.E.2d 669 (1991).