Dollar v. State, 66473

• Decision Date: 05 October 1983
• Docket Number: No. 66473,66473
• Citation: 168 Ga.App. 726,310 S.E.2d 236
• Court: Georgia Court of Appeals
• Parties: DOLLAR v. The STATE.

Page 236

310 S.E.2d 236

168 Ga.App. 726

DOLLAR v. The STATE.

No. 66473.

Court of Appeals of Georgia.

Oct. 5, 1983.

Rehearing Denied Nov. 3, 1983.

Certiorari Denied Jan. 6, 1984.

Harry J. Fox, Jr., Perry, for appellant.

G. Theron Finlayson, Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted for murder and convicted of voluntary manslaughter. On appeal, defendant enumerates three errors in which he challenges the sufficiency of the evidence, the trial court's charge on his insanity defense, and the trial court's refusal to charge on involuntary manslaughter. Held:

1. "A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person ...." OCGA § 16-5-2(a) (formerly Code Ann. § 26-1102 (Ga.L.1968, pp 1249, 1276)). The evidence adduced at trial provided a more than sufficient basis upon which a rational trier of fact could have found defendant guilty of voluntary manslaughter beyond a reasonable doubt. Consequently, defendant's attack on the sufficiency of the evidence is without merit.

2. The trial court instructed the jury that the defendant had the burden of proving his alleged insanity by a preponderance of the evidence. "In Georgia it remains the rule that an accused who asserts insanity as a defense has the burden of proving his insanity by a preponderance of the evidence." Williams v. State, 249 Ga. 839, 842(5), 295 S.E.2d 74. See OCGA § 16-2-3 (formerly Code Ann. § 26-606 (Ga.L.1968, pp. 1249, 1270)). Consequently, defendant's contention that the court's charge on insanity was unconstitutionally burden-shifting is without merit.

3. Defendant's remaining enumeration of error contends the trial court erred in refusing to instruct the jury on involuntary manslaughter after timely written request. OCGA § 16-5-3(a) (formerly Code Ann. § 26-1103(a) (Ga.L.1968, pp. 1249, 1276)) provides: "A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony." In Arnett v. State, 245 Ga. 470, 473, 265 S.E.2d 771 it was held "[i]t is error not to charge on involuntary manslaughter, upon request, where there is slight evidence warranting the charge. This is a question of fact to be decided in each case." Accordingly, we must examine the evidence to ascertain if such a charge was authorized and required.

The testimony disclosed that the defendant's mother had been married to the victim for about a year and had divorced the victim in 1972. During this marriage the victim allegedly assaulted defendant's mother, the defendant, and defendant's brothers and sisters. These alleged assaults took place at least 10 years prior to the date of the victim's death as a result of the beating with a claw hammer administered at the hands of the defendant on March 20, 1982.

The defendant testified: "He [victim] used to beat my little brothers. He would beat my little sister and he would beat my mama all the time. Every time you turn around, she was beat up all over her face. And there was one time in particular that's always stood out in my mind. And when he got up to leave [on March 20, 1982], I was sitting in a position to where I was sitting right beside the door, so he'd have to pass me to leave. When he started walking towards me, all I could see was my mother's face where he'd beat her so bad you couldn't see nothing for the blood. I remember grabbing the hammer. That's my hammer right there; I remember grabbing it. The next thing I remember was seeing him laying on the floor." In response to the question by his counsel, "Now, Jimmy, did you plan to kill Randy Burns that evening?," defendant answered, "No, I did not." (Emphasis supplied.)

On cross-examination of the defendant the following transpired: "Q. And on March 20th, that particular day when this happened, he didn't do anything to you then either, did he? A. No, sir. Q. As a matter of fact, he was cordial and friendly to you correct? A. I guess so. Q. Isn't it true, Mr. Dollar, that on that particular day, you were the one that went up to him and tried to pick a fight or pick an argument because you confronted him with his drinking, correct? A. No, sir, I did not try to pick a fight or argument or anything. Q. Well, it did end in an argument, did it not? A. Not an argument, no, sir, I wouldn't call it that. Q. Well, another individual there at the scene asked y'all to cool it, that everybody was here to have a good time, is that correct? A. Yes, sir. Q. So there was some discussion, is that a correct statement? A. Yes, sir. Q. That became somewhat heated, is that a fair statement? A. I guess that would be a matter of opinion. There was never any harsh words or any voice raised, except what he said about my family. Q. Well, to the point that y'all had to shake hands, correct? A. We did shake hands, yes sir. Q. Now, you confronted him, I believe, because you were disappointed that he had been drinking, is that right? A. I guess so. Q. Well, you had been drinking, too, though, hadn't you? A. Yes, sir ... Q. Okay, now, this fight, or this disagreement, excuse me, that you had with Mr. Burns earlier that evening, can you give me an idea about what time that occurred, just your best guess? A. I really don't know, I couldn't guess. Q. Let me ask you this, about how long before the assault was it, an hour, two hours? A. I would guess it was probably just a couple of hours. Q. A couple of hours. And during this period of time, everybody was sitting around enjoying the music, right? A. Yes, sir. Q. Mr. Burns was there, you were there, these other folks were there playing music and enjoying themselves? A. Yes, sir. Q. Everybody had had a little something to drink, correct? A. Yes, sir. Q. And after this disagreement that you had with Mr. Burns, or this discussion, and y'all shook hands, he didn't say anything else to you, did he? A. Maybe just casual conversation. Q. Of a friendly nature? A. Yes, sir. Q. But all this time I suppose you were thinking about your past childhood and everything, right? A. Well, sir, it's hard to control what pictures pop into your mind sometimes ... Q. You were feeling pretty good, weren't you? A. The liquor might have hit me just a little bit, if any at all. Q. And you remember everything that transpired up to that time, until you picked up the hammer, correct? A. Yes, sir, I think so. Q. Where was the hammer at, now? A. I don't remember, in the tool shed. Q. Are you sure you didn't go to that tool box and pick that hammer up? A. I don't remember. I remember grabbing the hammer, but I don't remember where I grabbed it from. Q. When did you grab the hammer? A. When he was walking towards me to go out the door. Q. You aren't saying he was walking towards you to do anything to you, are you? A. No, sir ... Q. Well, when did you decide to pick the hammer up and hit him in the head? A. Like I said, when he was walking, when he was getting ready to go. All I could see when he was walking towards me, when he was right in front of me, all I could see was my mother's face. Q. That's all you could see? A. I grabbed my hammer. Q. And what did you do? A. I guess I attacked him. Q. He didn't have a chance, did he? A. I don't guess so. Q. Sir? A. I don't guess so ... Q. You meant to hurt him, didn't you? A. I don't think so. Q. You don't think so? You don't think taking this heavy hammer and hitting somebody in the side of the head three or four times and you didn't mean to hurt him? A. The only thing that was going through my mind was the picture of my mother."

The state's evidence showed that the defendant administered several blows to the head of the victim with a claw hammer. These blows caused multiple lacerations and contusions about the head and ears of the victim with one laceration being "all the way through the jaw."

The transcript reflects that the trial court, in response to defense counsel's objection to the court's failure to charge on involuntary manslaughter, stated that "under the facts of this case ... involuntary manslaughter dealing with a lawful act is not in any way involved in this case ... that any unlawful act in this case on the part of the defendant would amount to a felony, and would not be a jury question as to whether it were a misdemeanor, as suggested by your charge."

In view of the totality of the evidence of the victim's injuries, the instrument (claw hammer) utilized in inflicting these serious injuries, had the victim survived and the jury rejected defendant's defense of insanity at the time of the crime, as the jury did in the case sub judice, the defendant would have been guilty not merely of simple battery but of aggravated assault, a felony.

The trial court did not err in declining to give a requested charge on involuntary manslaughter as the evidence did not warrant such a charge. See White v. State, 242 Ga. 21, 22(7), 247 S.E.2d 759; Cherry v. State, 242 Ga. 644, 250 S.E.2d 490; Booker v. State, 242 Ga. 773, 777(6), 251 S.E.2d 518. See also State v. Stonaker, 236 Ga. 1, 2 [Rule (3) ], 222 S.E.2d 354.

Judgment affirmed.

DEEN, P.J., and BANKE, CARLEY and POPE, JJ., concur.

SHULMAN, C.J., QUILLIAN, P.J., and BIRDSONG and SOGNIER, JJ., dissent.

BIRDSONG, Judge, dissenting.

There is no more fundamental principle governing trial and appellate practice than that preventing either the trial judges or appellate courts from weighing the evidence on issues of fact raised by the evidence in criminal cases. Thus, as the majority opinion recognizes, "where there is slight evidence warranting the charge" (emphasis supplied) (Arnett v. State, 245 Ga. 470, 473, 265...