Gainey v. State, 49749

• Decision Date: 10 October 1974
• Docket Number: No. 2,No. 49749,49749,2
• Citation: 209 S.E.2d 687,132 Ga.App. 870
• Parties: Sandra GAINEY v. The STATE
• Court: Georgia Court of Appeals

Page 687

209 S.E.2d 687

132 Ga.App. 870

Sandra GAINEY v. The STATE.

No. 49749.

Court of Appeals of Georgia, Division No. 2.

Oct. 10, 1974.

Melton, McKenna & House, James N. Butterworth, Andrew W. McKenna, Macon, for appellant.

Fred M. Hasty, Dist. Atty., Charles H. Weston, Walker P. Johnson, Jr., Asst. Dist. Attys., Macon, Marc H. Glick, W. Louis Sands, Law Students, Macon, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

1. It is contended in this conviction of voluntary manslaughter under a murder indictment that the state's evidence would have authorized a verdict of murder and the defendant's evidence would have authorized an acquittal, but that there was no evidence to justify an instruction or a conviction on the crime of voluntary manslaughter. We disagree. The deceased was shot while lying in bed, in the presence of his wife; the pistol was on the floor; the wife admitted firing the shot but swore that it was accidental and she was simply trying to pick up the pistol from where it had been lying and place it under the mattress. There was evidence that the defendant was jealous; that the deceased had been gone for the latter part of the evening and she thought he was with another woman; that she had previously stated she was going to kill him. On the other hand she made no attempt to flee but called for help very shortly after the shot was fired. 'Whenever a homicide is neither justifiable nor malicious, it is manslaughter, and, if intentional, is voluntary manslaughter. Davis v. State, 68 Ga.App. 296(3), 22 S.E.2d 762.' Spradlin v. State, 90 Ga.App. 97, 103, 82 S.E.2d 238. In the present case, if the homicide was neither accidental nor malicious it was intentional, and therefore was voluntary manslaughter. The jury had a right to disbelieve the bare statement of the defendant that a pistol had been lying on the floor all evening and, after her husband went to bed, she decided to pick it up and put it under the mattress. This is especially true in view of her prior threats. On the other hand, from the fact that she had been visiting various people with him earlier in the evening, and that the homicide bore no evidence of premeditation or attempt at concealment, they might find an absence of malice. The evidence supported the instruction and the verdict.

2. Police officers entering the apartment in response to an emergency call testified that they found the deceased on the bed with a bullet hold in his chest; a sheet with a hole in the upper part the size of a bullet hold and marked by powder burns indicating firing at close range, an open drawer in which they saw a box of bullets, and a pistol lying in open view on the floor. These physical items of evidence were the object of a motion to suppress which was properly overruled. 'A police officer is free to use and seize what he sees in plain sight if he is at a place where he is entitled to be.' Lewis v. State, 126 Ga.App. 123, 126, 190 S.E.2d 123, 126; Green v. State, 127 Ga.App. 713, 715, 194 S.E.2d 678. It should be added that this statement does not give an officer carte blanche to pick up any article his eyes may light upon, but where he is called to premises and while properly there sees in plain view what may be evidence relating to, and instrumentalities of, a crime in the immediate vicinity of a dead or wounded person, the preservation of the evidence may be justified under the 'exigent circumstances' rule. The motion to suppress was properly denied.

3. Where there was ample evidence as to the depth and direction of the bullet wound, it was not error to illustrate the testimony by...