Gannaway v. State, 53781
| Decision Date | 21 April 1977 |
| Docket Number | No. 53781,No. 3,53781,3 |
| Citation | 142 Ga.App. 87,235 S.E.2d 392 |
| Parties | Margie H. GANNAWAY v. The STATE |
| Court | Georgia Court of Appeals |
Blackburn & Bright, J. Converse Bright, Valdosta, for appellant.
H. Lamar Cole, Dist. Atty., Richard W. Shelton, Asst. Dist. Atty., Valdosta, for appellee.
Appellant Gannaway brings her appeal from a conviction of voluntary manslaughter and a sentence of three years' confinement. She enumerates as error the refusal of the trial court to direct a verdict of acquittal at the close of the state's case, and the allegedly erroneous curtailment of closing argument by the defendant's counsel. Held :
1. The evidence reflects a "lovers' spat," involving loud and vehement argument, physical violence by both the appellant and the deceased, and two or more shots fired by the appellant, one of which struck the deceased in the chest and caused his death. Such evidence evinces an act of anger, arising out of a fit of passion. The appellant presented evidence which, if believed by the jury, would have shown the killing to be justifiable as done in self-defense. Both theories were presented to the jury under full and legally correct instructions. By its verdict, the jury obviously elected to believe that the appellant acted from heat of passion provoked by adequate provocation and not out of motives of self-defense. Only where there is no conflict in the evidence and a verdict of acquittal is demanded as a matter of law is it error for a trial court to refuse to direct a verdict of acquittal. Davis v. State, 234 Ga. 730, 732, 218 S.E.2d 20 (1975); Merino v. State, 230 Ga. 604, 198 S.E.2d 311 (1973); Allen v. State, 137 Ga.App. 302, 303, 223 S.E.2d 495 (1976). Moreover, in reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the "any evidence" test. Lee v. State, 237 Ga. 626, 627, 229 S.E.2d 404 (1976); Mitchell v. State, 236 Ga. 251, 257, 223 S.E.2d 650 (1976); Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975). The evidence in this case supports the verdict of the jury. Ridley v. State, 236 Ga. 147, 149, 223 S.E.2d 131 (1976); Blackwell v. State, 139 Ga.App. 477, 478, 228 S.E.2d 612 (1976). See Brock v. State, 208 Ga. 318, 319(2), 66 S.E.2d 732 (1951).
2. In her second enumeration of error, the appellant complains that the trial court erred in sustaining the state's objection to that portion of the defense argument which asked the jury to consider that certain evidence (not identified in the record) which the state failed to present could be presumed to contain adverse consequences...
To continue reading
Request your trial
-
Wilson v. Zant
...failure to produce certain witnesses. See Brown v. State, 150 Ga.App. 831(2), 258 S.E.2d 641 (1979), cert. denied; Gannaway v. State, 142 Ga.App. 87(2), 235 S.E.2d 392 (1977). The latter rule was not applied to this defendant. Pretermitting the question of standing, we view this argument as......
-
Eley v. State
...State v. Terry, 472 S.W.2d 426 (Mo.1971); Commonwealth v. Wright, 255 Pa.Super 512, 388 A.2d 1084 (1978); see Gannaway v. State, 142 Ga.App. 87, 235 S.E.2d 392 (Ct.App.1977); cf. State v. Perez, 150 N.J.Super. 166, 375 A.2d 277 (1977) (failure of state to introduce results of spectographic ......
-
Stanley v. State
...merit. For the same reason, the trial court did not err in denying defendant's motion for a directed verdict. See Gannaway v. State, 142 Ga.App. 87(1), 235 S.E.2d 392; Alexander v. State, 239 Ga. 108, 112, 236 S.E.2d 2. Defendant contends the court erred in refusing to grant his "notice to ......
-
Morgan v. State
...witnesses. 3. In Wilson v. Zant, this court cited Brown v. State, 150 Ga.App. 831(2), 258 S.E.2d 641 (1979), and Gannaway v. State, 142 Ga.App. 87(2), 235 S.E.2d 392 (1977), as the sources for Wilson's assertion that a criminal defendant is not permitted to comment on the State's failure to......