Davis v. State, 30757
| Decision Date | 30 June 1976 |
| Docket Number | No. 30757,30757 |
| Parties | Grady DAVIS, Jr. v. The STATE. |
| Court | Georgia Supreme Court |
Robert D. Peckham, Jack H. Affleck, Athens, for appellant.
Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Asst. Dist. Atty., Athens, Arthur K. Bolton, Atty. Gen., Isaac Byrd, Atlanta, for appellee.
The defendant was convicted of murder and sentenced to life imprisonment. The defendant and the victim had had a fight two weeks earlier. On the night of the homicide, according to the defendant, the victim and the defendant were in a cafe, the victim pointed a pistol at the defendant, the defendant went outside, returned with a shotgun and killed the victim as he reached for his pistol. The State's witnesses had testified that the victim started to put his hands up when the defendant came in with the shotgun. Defendant contends that the trial court did not properly charge the jury so that he was denied a fair trial.
1. The defendant contends that the following portion of the charge to the jury was error: Although this charge will not hereafter be approved, State v. Moore, 237 Ga. 269, 227 S.E.2d 241 (1976), it is not error to give it at the time of the trial in this case. State v. Moore, supra.
2. Defendant complains of that part of the charge defining murder, Code § 26-1101, which states that malice '. . . shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.' The defendant contends that this portion of the charge unfairly shifted to him the burden of proving provocation; i.e., of proving his innocence.
Malice is a...
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