Graham v. State, 29757

• Decision Date: 02 June 1975
• Docket Number: No. 29757,29757
• Citation: 216 S.E.2d 817,234 Ga. 520
• Parties: Isaac GRAHAM v. The STATE.
• Court: Georgia Supreme Court

Page 817

216 S.E.2d 817

234 Ga. 520

Isaac GRAHAM v. The STATE.

No. 29757.

Supreme Court of Georgia.

June 2, 1975.

Carroll L. Cowart, Public Defender, Glennville, for appellant.

John W. Underwood, Dist. Atty., Hinesville, Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee. Syllabus Opinion by the Court

HILL, Justice.

Appellant Isaac Graham, an inmate of Georgia State Prison, was indicted for the murder of a fellow prisoner, Henry 'Red' Watkins, tried by a jury in the Superior Court of Tattnall County, convicted and sentenced to life imprisonment on April 26, 1974. Following the overruling of his amended motion for new trial he filed his notice of appeal.

1. Appellant's first enumeration of error is that the verdict of guilty was contrary to the evidence, without evidence to support it and strongly against the weight of the evidence because the verdict was contrary to law and the principles of justice and equity. He argues that there was no evidence of malice aforethought.

Upon the trial the State introduced testimony from the doctor who performed the autopsy and two correctional officers at Georgia State Prison. The doctor testified that there were six stab wounds on the body, only one of which, in the right stomach area over the liver, could be fatal. The other stab wounds were on the arm, shoulder, leg and left side of the back.

The two officers both testified in substance that at 7:30 a.m. on the morning of May 25, 1973, they were on duty in the hall of cell house M-4 at Reidsville within 30 feet of the shower and lavatory area; that they heard a man holler and looked into the shower area where they saw the appellant stabbing Watkins with a sharpened silverware knife that had tape on the handle; that when they went into the shower area the appellant relinquished the knife to them; and that they did not know who first hollered but after they got in the shower area they heard Watkins saying, 'Quit, quit.'

The testimony of the appellant and other inmates showed that Watkins had a reputation for being a homosexual; that he had been after appellant to become his 'wife'; that appellant had refused his advances; that heated words had been exchanged the evening before the incident in question; that Watkins told the appellant that on the following day, 'shower day,' appellant should come out 'switching (fighting) or swinging'; that the next day Watkins went to the showers; that appellant also went to the shower room, to wash a towel; that Watkins came out of the shower, went to his towel, got a knife and approached the appellant; that another inmate hollered to appellant to 'look out'; that appellant threw his towel at Watkins; that they scuffled; that Watkins dropped the knife; and that appellant retrieved it and stabbed the deceased.

The trial court instructed the jury as to murder with malice aforethought, as to express and implied malice, as to voluntary manslaughter, and as to justifiable homicide.

Although there was evidence from which the jury might have found justification, the jury found the appellant guilty of murder. There was evidence to support the verdict of guilty, including evidence of malice. 'To kill by using a deadly weapon in a manner likely to produce death, will raise a presumption of intention to kill. (Citations).' Chandle v. State, 230 Ga. 574, 575, 198 S.E.2d 289. 'If a homicide is proved, and the evidence adduced to establish it shows neither mitigation nor justification, malice will be presumed from proof of the homicide; but the presumption is rebuttable, and may be overcome by evidence of alleviation or justification. Boyd v. State, 136 Ga. 340, 71 S.E....