Braxton v. State, 32701

• Citation: 239 S.E.2d 339,240 Ga. 10
• Decision Date: 21 October 1977
• Docket Number: No. 32701,32701
• Parties: Jerome BRAXTON v. The STATE.
• Court: Georgia Supreme Court

Page 339

239 S.E.2d 339

240 Ga. 10

Jerome BRAXTON v. The STATE.

No. 32701.

Supreme Court of Georgia.

Oct. 21, 1977.

Brayton S. Dasher, Macon, for appellant.

Walker P. Johnson, Jr., Dist. Atty., Thomas J. Matthews, Willis B. Sparks, III, Asst. Dist. Attys., Macon, Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Staff Asst. Atty. Gen., Atlanta, for appellee.

BOWLES, Justice.

Appellant, Jerome Braxton, was indicted, tried and found guilty of murder. Following the denial of his motion for new trial, he appeals to this court and enumerates six errors in the trial court's charge to the jury. We find no error and affirm.

1. Appellant's first and sixth enumerations of error contend that the trial court erred in failing to charge the jury that voluntary manslaughter is not itself a felony which will invoke the felony-murder rule. Appellant contends that because of our holding in Malone v. State, 238 Ga. 251, 232 S.E.2d 907 (1977), the jury should have been so instructed.

In Malone, supra, this court stated that voluntary manslaughter was not a felony in and of itself which would invoke the felony-murder rule as to the death of the main victim. Therefore, in such cases, the jury should be instructed that if they find felonious manslaughter, they should not go on to reason that that offense would turn the killing into murder, under the felony-murder rule.

In the instant case, after charging malice-murder, the court instructed the jury on felony-murder, charging them that "a homicide though unintended if committed by the accused at the time he is engaged in the commission of some other felony constitutes murder." The court charged that aggravated assault was a felony and, that if the jury found the deceased met his death while the defendant was committing an aggravated assault upon him, they would be authorized in finding the defendant guilty of murder.

Following a charge on the elements of aggravated assault the court instructed the jury that "(Y)ou must find, however, before you would be authorized to find the defendant guilty of murder while in the commission of a felony that the State has shown to a reasonable and moral certainty and beyond all reasonable doubt . . . all of the elements of the offense of aggravated assault and that the deceased came to his death while the defendant was committing the offense of aggravated assault upon him . . ."

We find the charge clearly instructed the jury that in order for them to find the defendant guilty of murder while in the commission of a felony, they would be required to find the defendant guilty of aggravated assault. The court's charge made it clear that voluntary manslaughter could not be the felony which would invoke the felony-murder rule, and thus, specific limiting instructions to that effect need not have been given.

2. Appellant's second and third enumerations of error contend that the court erred in charging the jury on felony-murder, when appellant was, he contends, only indicted for malice murder. Appellant argues that this alleged inconsistency between the indictment and charges on felony-murder, malice-murder and aggravated assault, misled and confused the jury in reaching their verdict.

The indictment charged the appellant with the offense of murder, in that appellant had "unlawfully and with force and arms, feloniously, and with malice aforethought, with a pistol and revolver, which he had and held, the same being a weapon likely to produce death, make an assault upon Edward Birdsong, and the said accused, with said weapon, did then and there unlawfully, feloniously, and with malice aforethought shoot the said Edward Birdsong, thereby giving to him mortal wounds, of which wounds the said Edward Birdsong then and there died." (Emphasis supplied.)

Only recently, we held that it was not error to charge a jury on felony-murder under an indictment for malice-murder. Cromer v. State, 238 Ga. 425, 233 S.E.2d 158 (1977).

The indictment charged the appellant with murder. In doing so, it accused the appellant of having made an assault upon the victim with a deadly weapon, and then, with malice aforethought, inflicting upon him a mortal wound. The wording of the indictment and our decision in Cromer, supra, do not preclude a charge on felony-murder, and we hold that it was not error for the court to charge the jury on felony-murder along with malice-murder and aggravated assault. The charges relating to aggravated assault were necessary to invoke the felony-murder rule and in no way misled or confused the jury.

3. Appellant contends that the court erred in charging the jury that they might disregard the testimony of any witness only if that witness wilfully and corruptly testified falsely to any fact, and further, that the court erred in charging that in manslaughter there is no malice expressed or implied.

The appellant has taken these charges out of context, and a reading of the charge as a whole indicates that the complained of charges were correct statements of the law. Appellant's enumerations of error numbered four and five are, therefore, without merit.

4. Appellant contends that the trial court erred in failing to charge, in the absence of request, the law on involuntary manslaughter. This enumeration of error number seven was added by amendment after the time for filing the enumerations in this court had expired. Notwithstanding, appellant's enumeration is without merit.

Recently we held in State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354 (1976), that a trial judge is required to charge on a lesser included offense only if the charge is warranted by the evidence and the request to charge is in writing. However, our decision in Stonaker, supra, is to be applied prospectively and only to those cases tried after January 27, 1976. See, Graham v. State, 236 Ga. 378, 384, 223 S.E.2d 803 (1976); Kessel v. State, 236 Ga. 373, 374, 223 S.E.2d 811 (1976); Radford v. State, 238 Ga. 532, 233 S.E.2d 785 (1977). In the instant case no request to charge involuntary manslaughter was made. Thus, under our present ruling in Stonaker, supra, we would find no error in the court's failure to charge on involuntary manslaughter.

This case, however, was tried on May 19, 1975, and, therefore, Stonaker, supra, does not apply. Nevertheless, under previous decisions of this court, we find appellant's enumeration of error to be without merit.

Prior to Stonaker, supra, we...