Carmichael v. State, 42673

• Decision Date: 18 April 1967
• Docket Number: No. 42673,No. 2,42673,2
• Citation: 155 S.E.2d 439,115 Ga.App. 591
• Parties: Murnteen CARMICHAEL v. The STATE
• Court: Georgia Court of Appeals

Page 439

155 S.E.2d 439

115 Ga.App. 591

Murnteen CARMICHAEL v. The STATE.

No. 42673.

Court of Appeals of Georgia, Division No. 2.

April 18, 1967.

Syllabus by the Court

1. In view of Section 10 of the recently enacted amendments to the Appellate Practice Act of 1965, as amended (Ga.L.1967, p. 220, approved on March 30, 1967) this court will consider alleged errors relating to jury instructions or the failure to give instructions in criminal cases now pending before the court, even though the record fails to disclose objections at the trial to the instructions as given, or requests at the trial for instructions allegedly erroneously admitted.

2. Under the evidence the trial court properly limited the jury to findings of murder, voluntary manslaughter, or acquittal, including acquittal on the theory of an accidental homicide, and under such limitations isolated references to manslaughter without specifying such manslaughter as voluntary manslaughter, could in no way confuse the jury. Even if it be conceded, however, that some theory of the evidence would support a finding of involuntary manslaughter in some form, the instructions as given were more favorable to the accused by requiring acquittal unless the evidence convinced the jury beyond a reasonable doubt of guilt as to murder or voluntary manslaughter, and thus afford the accused no cause for complaint.

3. There is no merit in the enumerated error based on the failure to instruct on the law of self-defense.

4. The evidence supports the verdict and judgment, and no error of law appearing, the trial judge did not err in overruling the motion for a new trial.

When this case was here previously the court reversed a conviction of voluntary manslaughter because of error in the sentencing instructions. Carmichael v. The State, 112 Ga.App. 313, 145 S.E.2d 62. A new trial resulted in a conviction for voluntary manslaughter on October 20, 1966, and a sentence of three to five years confinement.

On April 17, 1963, Murnteen Carmichael, the accused, following her daily custom for a number of years, drove her automobile, in which her grandmother was a passenger, from the house where she and her grandmother lived to the house where the grandmother's son lived, in order for the grandmother to remain there while the accused was at work. The decedent, Connie Lee Taylor, a daughter-in-law of the grandmother's son, also lived at this house. Upon arrival the accused parked in front of the house and remained in the driver's seat. The grandmother left the automobile and seated herself on the porch, but after some remarks between the accused and others the grandmother returned to the automobile and seated herself beside the accused. In the meantime the decedent had come to the automobile, and a heated argument was in progress between the accused and the decedent concerning reports about the accused's conduct. The decedent was standing outside the car at the driver's window. A loaded .22 caliber revolver was on the seat between the accused and her grandmother, where the accused customarily kept it for her protection. According to some of the testimony, the accused grabbed the decedent by the hair with one hand, picked up the revolver with the other, and fired two shots which struck the decedent in the head and neck, producing death almost immediately. According to other testimony and the statement of the accused at the trial, the decedent grabbed the accused by the hair with one hand and reached across the accused and grabbed the revolver, and the revolver fired twice in the course of a struggle between the accused and the decedent. From the apparent path of the bullets, as shown by the wounds and evidence on the vehicle, the revolver was fired from a position above the head of the accused, and while pointing downward and to the outside of the vehicle. The engine of the vehicle was running when the revolver was fired, although there is a conflict in the testimony as to whether the accused had ever shut it off after she parked in front of the house. Immediately following the shots the accused drove away, with her grandmother in the vehicle, and she was apprehended at her home later that same day.

The trial judge overruled a motion for a new trial, and the enumeration of errors on appeal corresponds to the grounds of the motion.

Arthur C. Farrar, George Jordan, Douglas, for appellant.

Dewey Hayes, Solicitor Gen., Douglas, for appellee.

JORDAN, Judge.

1. Headnote 1 requires no elaboration.

2. In instructing the jury the trial judge eliminated involuntary manslaughter in any form from consideration by the jury, and restricted the jury to a choice, under the evidence, of conviction of murder or voluntary manslaughter, or acquittal, including acquittal upon a determination that the shooting was accidental, unmixed with any evil design or culpable neglect by the accused. The first enumerated error is directed generally to the overruling of the motion for a new trial, and is argued on the basis that the evidence warranted instructions on the lesser offenses of involuntary manslaughter in the commission of an unlawful act and involuntary manslaughter in the commission of a lawful act. The second and third enumerated errors are directed to instructions concerning punishment for manslaughter, and findings in relation to murder, manslaughter, and acquittal, wherein the trial court used the term manslaughter without specifying that he was referring solely to voluntary manslaughter, and the accused argues that the court erred in failing to refer to manslaughter as voluntary manslaughter. The fourth through the tenth enumerations are directed to the failure to instruct on the law...