Horne v. State, 60324
| Decision Date | 26 November 1980 |
| Docket Number | No. 60324,60324 |
| Citation | 273 S.E.2d 193,155 Ga.App. 851 |
| Parties | HORNE v. The STATE. |
| Court | Georgia Court of Appeals |
John R. Calhoun, William O. Cox, Savannah, for appellant.
Dupont K. Cheney, Dist. Atty., for appellee.
Billy E. Horne was indicted for murder and after a trial before a jury was convicted of involuntary manslaughter.
1. Appellant contends that the trial court erred in its definition of involuntary manslaughter because it did not define the underlying "unlawful act" and that it was error to give a charge on involuntary manslaughter because such a charge was not supported by the evidence.
A verbatim charge in the language of Code Ann. § 26-1103 is not error. See Newsome v. State, 149 Ga.App. 415, 254 S.E.2d 381 (1979). It is well-established " '(w)here no point is made that the facts make a case of involuntary manslaughter, either in argument before the court or by request to charge the law thereon, the court need not instruct the jury touching that grade of homicide further than to read the sections of the Code thereon, unless the facts place such an issue prominently in the case.' " Ray v. State, 235 Ga. 467, 469, 219 S.E.2d 761 (1975). The defendant relied upon a defense of accident claiming that the victim had threatened him earlier in the day shortly after meeting him for the first time and that Way appeared at his former wife's trailer about 1:00 a. m. banging on the door and demanding to be let inside. The defendant claimed that he picked up a pistol, thought he put the safety on, and tried to hold the door shut with his left hand when the victim jerked the trailer door open and the gun discharged.
If the jury believed Horne's version of the facts, it would have found the shooting to be accidental and acquitted him. Under Code Ann. § 38-1805, the credibility of the witness is a matter for jury determination. The district attorney cross-examined Cathy Way, the victim's former wife, as to a statement which she made shortly after the shooting in which she stated that Horne opened the door although she testified at trial that she could not remember what happened. "While the evidence may have authorized a verdict of involuntary manslaughter, it did not demand such a verdict and in the absence of a request for a more complete charge on the subject, the trial court did not err in failing to expound thereon beyond the charge given." Ray, supra, at 469, 219 S.E.2d 761.
The trial court also did not abuse its discretion in charging on the lesser crime. State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354 (1976). Appellant's first two enumerations of error are without merit.
2. The trial court's instructions to the jury that there were only three possible verdicts were not confusing, misleading or in inaccurate statement of the law. After the charge was given, the jury twice requested the court to define the three possible verdicts as previously charged by the court. After the second recharge, the district attorney expressed concern that the order in which the court listed the possible verdicts differed from the order in which the judge listed their deliberations and he expressed an opinion that the charge was confusing and requested a clearer recharge. The court then charged the jury: "...
This final charge clearly explains to the jurors the manner in which they were to reach their decision and that they could find the defendant guilty of murder, not guilty of murder, guilty of involuntary manslaughter, or not guilty of involuntary manslaughter. The defendant's contention that the charge only authorized the jury to find him guilty of murder, not guilty of murder or guilty of involuntary manslaughter is not supported by the record. There is nothing in the record to indicate that there was any confusion in the minds of the jurors as to how they were to reach their verdict or the form of their verdict after the final recharge. This enumeration is without merit.
3. The trial court did not err in denying appellant's motion for a directed verdict of acquittal. (The basic facts leading up to the shooting are set forth in Division 1 above.) After the shooting, the police recovered a .32 caliber revolver from the victim. A neighbor who was in a bedroom with a window open across the road did not hear any shouting or banging prior to the shooting. She testified that Horne called her about 1:00 a. m. and asked if he could park his car in her driveway, she gave him permission, and she tried to go back to sleep and could hear dogs barking and then the shot. As also stated in Division 1 above, Cathy Way was cross-examined about the statement which she gave to the police immediately after the shooting and her inconsistent testimony at trial. The defendant also made a statement to the police after he was asked what happened: At the time of this statement, Horne made no mention of his later trial testimony that the door was snatched open and the gun went off accidentally. Appellant's assertion that no malice was proved is without merit. While it is true that express malice was not shown by the state, the evidence did authorize the jury to imply malice on the part of the appellant. See Wilburn v. State, 230 Ga. 675(1), 198 S.E.2d 857 (1973). As appellant's initial statement which he volunteered to the police officer is somewhat inconsistent with a defense of accident, it became a question of fact to be decided by the jury as to whether murder, involuntary manslaughter or accidental homicide was the real truth in the shooting.
4. The trial court properly excluded testimony of the victim's prior violent acts towards third persons. There was no evidence that the deceased was assailing the defendant. Cathy Way testified that her former husband did not make any threats when he was banging on the trailer door; he just demanded to be let in. Assuming the victim was assailing Horne, evidence of the victim's general reputation is admissible, but his character for violence cannot be established by specific acts towards third persons. Music v. State, 244 Ga. 832, 262 S.E.2d 128 (1979). As Way had threatened Horne earlier in the day, the trial court properly limited the evidence to general reputation and excluded specific acts of violence towards persons other than appellant.
5. The trial court did not deny appellant access to evidence to which he was entitled under his Brady motion and notice to produce. Contrary to appellant's contention that the results of a blood alcohol test on the victim were not given to him, the record of the preliminary hearing held on August 3, 1979, shows that he was informed by Detective...
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