Jackson v. State
| Decision Date | 13 May 1977 |
| Docket Number | No. 32148,32148 |
| Citation | 239 Ga. 40,235 S.E.2d 477 |
| Parties | Steve JACKSON v. The STATE. |
| Court | Georgia Supreme Court |
Robert E. Andrews, Gainesville, for appellant.
Jeff C. Wayne, Dist. Atty., James H. Whitmer, Asst. Dist. Atty., Gainesville, Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Staff Asst. Atty. Gen., Atlanta, for appellee.
Appellant was tried by a jury for murder in the shooting death of Ernest Brown. The jury returned a verdict of guilty and, the state not having sought the death penalty, appellant was sentenced to life imprisonment. In his appeal, Jackson enumerates seven errors.
1. The first enumeration of error alleges that the trial court erred in failing to charge, without request, the law applicable to voluntary manslaughter.
Appellant's contention that our decision in State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354 (1976), should not apply to murder prosecutions where there is evidence of voluntary manslaughter was rejected in Graham v. State, 236 Ga. 378, 384, 223 S.E.2d 803 (1976) and Mitchell v. State, 238 Ga. 420, 233 S.E.2d 173 (1977). It is clear that the rule set forth in Reeves v. State 234 Ga. 896, 218 S.E.2d 625 (1975); Williams v. State, 232 Ga. 203, 206 S.E.2d 37 (1974); Banks v. State, 227 Ga. 578, 580, 182 S.E.2d 106 (1971), and similar cases both by this court and the Court of Appeals, to the effect that the trial court must charge, even without request, the law of voluntary manslaughter whenever there is some evidence to support such a charge, will no longer be followed. These cases, to the extent they conflict with State v. Stonaker, supra, and Mitchell v. State, supra, are overruled.
Appellant correctly points out that under Stonaker, the trial judge may, in his discretion, and without request, give a charge on a lesser crime of that included in the indictment or accusation. State v. Stonaker, supra, 236 Ga. at 2, 222 S.E.2d 354. From this, he claims that the court may commit reversible error if his failure to give such a charge amounts to an abuse of discretion. This contention is without merit. Stonaker clearly provides that the failure to charge on a lesser included offense, without request, is not error.
2. The trial court's charge on circumstantial evidence omitted the language that "if the theory (hypothesis) of the defendant's innocence is as reasonable as that of his guilt, the defendant should be acquitted." The appellant made no request for a fuller charge on circumstantial evidence, and made no objection to the charge as given. The omission was not clearly harmful and erroneous as a matter of law, and therefore was not error. Spear v. State, 230 Ga. 74, 195 S.E.2d 397 (1973).
3. In charging the law relative to justification, the trial court included the principle, found in Code Ann. § 26-902(b)(1) (Ga.L.1968, pp. 1249, 1272), that a person is not justified in using force under the circumstances set forth in Code Ann. § 26-902(a) where he initially provokes the use of force against himself in order to use that use of force as an excuse to harm another. Appellant's third enumeration of error complains that this principle was inapplicable to this case and therefore the charge confused and misled the jury and amounted to an expression of opinion by the trial court. There was direct evidence that shortly before entering the place where the shooting occurred, appellant, who had a pistol under his belt, told a friend that he was going to kill the victim. There was also evidence that immediately before the shooting, the appellant interrupted a domestic dispute between the victim and the victim's wife. The evidence authorized the charge.
4. Enumerations of error four and five complain that, in charging on justification, the trial court instructed the jury that the applicable standard was whether the circumstances were such that they would excite the fears of a reasonable man, and not merely the fears of the appellant. This...
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