Boling v. State, 35523
| Decision Date | 05 December 1979 |
| Docket Number | No. 35523,35523 |
| Citation | 244 Ga. 825,262 S.E.2d 123 |
| Parties | BOLING v. The STATE. |
| Court | Georgia Supreme Court |
McCutchen & Dimmock, J. Carey Hill, Ellijay, Elizabeth Glazebrook, Jasper, for appellant.
Frank C. Mills, III, Dist. Atty., Arthur K. Bolton, Atty. Gen., for appellee.
The appellant was convicted of murdering his estranged wife. At the time of the homicide, the deceased was living with her mother, brother, and sister-in-law. The appellant had come to their house to pick up the deceased and their child in order to take the child to the hospital. After the appellant arrived, the other members of the deceased's family left the house. The following day, the deceased's corpse was discovered lying underneath a bed in the house. The deceased's body had bruises and marks about the neck and head, and there was evidence that she had been pushed underneath the bed.
The appellant was discovered driving in the vicinity of the house with the child. The appellant was arrested by police, and, although he admitted to having a scuffle with the deceased, he stated that she was all right when he left her. Subsequently, upon being interrogated by the police, the appellant admitted that he had gotten into a fight with the deceased and knocked her to the floor. When he was unable to revive her by pouring water on her, he pushed her body underneath the bed.
At trial, evidence was introduced concerning prior fights between the appellant and the deceased. The appellant took the stand and testified that he and the deceased were fighting, and she was about to throw a vase at him. He was afraid the vase might hit the baby, so he pushed the deceased onto the couch. He grabbed her, but he only intended to restrain her until she calmed down. She got one of her arms loose and started swinging. He did not remember anything further until he saw her lying on the bedroom floor. He panicked and pushed her body underneath the bed. He then straightened up the house and left.
The physician performing the autopsy testified that his examination of the deceased's body showed some bruising around the eye and underneath the scalp, as well as several fingernail marks around the neck and throat. The deceased died from asphyxia, at least a part of which was caused by choking.
1. The trial court did not err in refusing to give the appellant's request to charge on involuntary manslaughter.
Braxton v. State, 240 Ga. 10, 14, 239 S.E.2d 339, 342 (1977).
The trial court did not err in refusing to charge the jury under Code Ann. § 26-1103(a), because the unlawful act engaged in by the appellant in causing the victim's death was aggravated assault, a felony. Code Ann. § 26-1302. Although fists per se are not "deadly weapons" within the meaning of Code Ann. § 26-1302, in a particular case, they may be found to be deadly weapons depending upon such things as the manner and means of their use and the wounds inflicted. Kirby v. State, 145 Ga.App. 813(4), 245 S.E.2d 43 (1978); Quarles v. State, 130 Ga.App. 756(2), 204 S.E.2d 467 (1974) and cits. Nor did the trial judge err in refusing to charge the jury under Code Ann. § 26-1302(b), as there is no evidence of any lawful act committed by the appellant when he caused the victim's death.
Under the evidence, the appellant was guilty of either murder, voluntary manslaughter, or justifiable homicide by reason of self-defense. The trial judge fully charged the jury on each of the foregoing principles of law, and we find no error.
2. The trial court did not err in overruling the appellant's motion for new trial on the general grounds. The evidence is sufficient to support a verdict of guilty by a rational trier of fact.
3. The trial court did not abuse its discretion in overruling the appellant's motion for a continuance. Brawner v. State, 221 Ga. 680, 146 S.E.2d 737 (1966).
4. The trial court did not err in failing to dismiss the jury panels after a prospective juror testified that she had heard the case "discussed by certain authorities" and "seen certain evidence." This juror was later questioned outside of the presence of the other jurors, and it was determined that she had not discussed with any of the other jurors the case or the evidence she had heard concerning it. The juror was then excused by the trial judge. This curative action taken by the trial judge was sufficient to eliminate any prejudice that may have been caused to the appellant. Had the appellant wished any further action to be taken by the trial judge, he should have requested it. See Scott v. State, 229 Ga. 541(6), 192 S.E.2d 367 (1972). This he did not do. We find no error.
5. The trial judge did not err in admitting the testimony of the victim's mother that, approximately three weeks prior to the victim's death, she and the victim were at a laundromat; that the appellant came to the laundromat, and the victim left the laundromat with the appellant; that when the witness saw the victim again, she was crying, and she was wearing a scarf that she had not been wearing before; that the next morning, the witness observed bruise marks on the victim's neck.
The appellant argues that this testimony should have been excluded, because it had the effect of putting his character in issue. We disagree. On a trial for murder, evidence of recent prior difficulties between the defendant and the deceased is admissible as shedding light on the state of feelings between the accused and the deceased and showing motive. White v. State, 242 Ga. 21, 247 S.E.2d 759 (1978); Evans v. State, 227 Ga. 571, 181 S.E.2d 845 (1971). Evidence which is otherwise admissible is not rendered inadmissible because it incidentally places the defendant's character in issue. Wyatt v. State, 206 Ga. 613, 57 S.E.2d 914 (1950); Light v. State, 104 Ga.App. 839, 123 S.E.2d 201 (1961). See generally Agnor's Ga.Evid. 169, § 10-5.
6. The trial court did not abuse its discretion in admitting in evidence a photograph of the victim taken several weeks prior to her death. Where they are relevant on the issues in the case, photographs of the victim...
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...(holding that a hand may be deemed a dangerous instrument depending on the precise manner in which it is used); Boling v. State, 244 Ga. 825, 262 S.E.2d 123, 125 (1979) (holding that fists may be deadly weapons depending on the manner of their use where a husband asphyxiated his estranged w......
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...of accidental killing is not involved. [Cit.]' Todd v. State, 149 Ga.App. 574, 575, 254 S.E.2d 894 (1979)." Boling v. State, 244 Ga. 825, 829(9), 262 S.E.2d 123 (1979). ...
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Criminal Law - Frank C. Mills, Iii
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