Brawner v. State, 32857
| Decision Date | 16 March 1950 |
| Docket Number | No. 2,No. 32857,32857,2 |
| Citation | 81 Ga.App. 163,58 S.E.2d 238 |
| Parties | BRAWNER v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1 Where the defendant has been tried for murder and convicted of voluntary manslaughter, and the evidence most favorable to the State showing him to be guilty of the offense of murder, and that most favorable to the defendant, including the defendant's statement, showing the homicide to be justifiable, there being no other evidence to support a theory of manslaughter, it is error for the trial court to charge the law applicable to voluntary manslaughter.
2. To declare the law applicable to a given state of facts in a charge to the jury is not an expression of opinion of the trial judge as to whether the state of facts referred to does or does not exist.
3. No fatal variance between pleading and proof exists where one weapon is charged in the indictment as that inflicting the injury, and the evidence shows the injury to have been in fact inflicted by another weapon capable of inflicting the same character of injury.
4. The general grounds of the motion for a new trial are not here passed upon, since the case may again be tried.
The undisputed evidence shows that the defendant operated a small mercantile establishment in Cartersville and lived in a house next door which was located about 40 or 50 feet away; that one Raymond Guyton, frequently referred to in the evidence as Jay Guyton, had been in the store of the defendant previous to the killing and the two had engaged in physical combat; that following this trouble Guyton went to a house somewhere in the neighborhood, procured a double barrelled shotgun, and upon returning to the home and store of the defendant thus armed was himself killed by the defendant, who shot him several times with a pistol.
Upon the conviction of the defendant for voluntary manslaughter he filed a motion for a new trial on the general grounds, later amended by adding three special grounds. The trial judge overruled the motion for a new trial as amended and this judgment is assigned as error.
J. L. Davis, Cartersville, Wm. A. Ingram, Cartersville, M. G. Hicks, Rome, C. T. Culbert, Jr., Rome, for plaintiff in error.
Warren Akin, Sol. Gen., Cartersville, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts.)
1. Special ground 1 of the amended motion for a new trial contends that the trial court erred in charging the jury on the law of voluntary manslaughter, it being contended that the homicide, as shown by the evidence, was either murder or justifiable, and that therefore the law of voluntary manslaughter was inapplicable to the case.
Three persons testified that they were eyewitnesses to the shooting. Two of these were witness for the defendant. Their testimony, coupled with the physical facts, point only to justifiable homicide. These physical facts include the deceased lying in the street in front of the defendant's store; a double barrelled shotgun with both barrels discharged and the gun broken down, indicating an effort on the part of the deceased to reload, lying near him; the front window of the store shot out by shotgun fire and a row of empty bottles in a case on the premises broken by shotgun fire; a severe wound from shotgun fire in the left shoulder of the defendant, and blood and bits of flesh on a Dr. Pepper sign nailed up on the front portion of the store just back of where the defendant was standing when he was shot, which sign was also perforated by shotgun pellets. The undertaker also testified that he found in the pocket of the deceased a knife with a bloody blade which corroborated the testimony of a witness and the statement of the defendant that Guyton stabbed him with the knife during the...
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Glass v. State, A91A0052
...weapon and the evidence revealed a pistol was used. Jackson v. State, 158 Ga.App. 702(3), 282 S.E.2d 181 (1981); Brawner v. State, 81 Ga.App. 163, 166(3), 58 S.E.2d 238 (1950). In armed robbery cases, a variation which concerns a description of or the amount of stolen property is not fatal.......
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...capable of inflicting the same character of injury.' Trowbridge v. State, 74 Ga. 431(4)(a). To the same effect, see Brawner v. State, 81 Ga.App. 163, 166, 58 S.E.2d 238, and citations. A pistol is a gun. Hill v. State, 147 Ga. 650(1), 95 S.E. 213; see also, Norwood v. State, 28 Ga.App. 238(......
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