Jones v. State
| Decision Date | 01 July 1980 |
| Docket Number | No. 36065,36065 |
| Parties | JONES v. The STATE. |
| Court | Georgia Supreme Court |
Thurbert E. Baker, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Margaret V. Lines, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.
Appellant appeals from his convictions for aggravated assault and for murder. Appellant was sentenced to life imprisonment for murder and ten years for aggravated assault, the latter sentence to run concurrently with the life sentence. Appellant appeals from both convictions. He enumerates as error in regard to the aggravated assault conviction the general grounds that the verdict is contrary to the evidence, against the weight of the evidence, and contrary to the law and principles of justice and equity. He charges five enumerations of error connected with his murder conviction.
1. The aggravated assault charge against appellant was tried to the court in a separate trial from the murder charge. No independent notice of appeal was filed as to this conviction, but errors were enumerated on the general grounds. Aggravated assault is not a capital felony. Code Ann. § 26-1302. Inasmuch as there was no other question in the aggravated assault case over which this court has exclusive jurisdiction under Art. VI, Sec. II, Par. IV of the Georgia Constitution (Code Ann. § 2-3104), this court has no jurisdiction to review the conviction. Edwards v. State, 224 Ga. 616, 163 S.E.2d 823 (1968). Inasmuch as there was no consolidation of the aggravated assault case with the murder case, the two cases being tried separately and separate judgments being rendered, there is no authority for this court to include a review of the aggravated assault judgment along with its review of the murder conviction. Stephenson v. Futch, 213 Ga. 247, 98 S.E.2d 374 (1957). Accordingly, the appeal from the aggravated assault conviction must be dismissed. Even if this were not required, the conviction would have been affirmed because a review of the record reveals that the evidence supported the verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant's first enumeration is that the verdict is contrary to the evidence, the verdict is against the weight of the evidence, and the verdict is contrary to law and principles of equity and justice. The testimony in the case revealed that three eyewitnesses observed appellant shoot the victim at point blank range, striking him in the neck. Two of the eyewitnesses saw appellant chase the victim across the street and saw him fire on the victim again as the victim attempted to secure help from a policeman. In view of this eyewitness testimony and in view of the fact that no explanation or mitigating circumstances were offered by appellant, appellant's first enumeration of error is without merit. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Lamar v. State, 243 Ga. 574, 255 S.E.2d 51 (1979).
3. Appellant contends that the court erred in failing to charge voluntary manslaughter, Code Ann. § 26-1102. Testimony at the trial indicated an argument took place between appellant and the victim. The evidence shows, however, that the argument was initiated by appellant, who accused the victim of attempting to rob appellant's father. There was no evidence of any threat made by the victim, and the testimony showed that although the victim's participation in the argument was loud, it was mainly defensive. In order for an argument to mandate a charge of voluntary manslaughter, it must be of such a nature to excite "a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person . . ." Code Ann. § 26-1102. Thus, the evidence in the case did not require a charge of voluntary manslaughter. Driggers v. State, 244 Ga. 160, 259 S.E.2d 133 (1979); Lowe v. State, 240 Ga. 767, 242 S.E.2d 582 (1978). Further, in the absence of a written request for a charge, it is not error for a court to fail to charge on voluntary manslaughter. Driggers v. State, supra; Bouttry v. State, 242 Ga. 60, 247 S.E.2d 859 (1978); Jackson v. State, 239 Ga. 40, 235 S.E.2d 477 (1977); State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354, cert. denied, 429 U.S. 833, 97 S.Ct. 98, 50 L.Ed.2d 98 (1976). Inasmuch as neither the defendant nor the state presented the court with a written request to charge on voluntary manslaughter, and inasmuch as there was no evidence which would have mandated such a charge even if a request had been made, there was no error in the court's failure to charge on voluntary manslaughter. Appellant's second enumeration of error is without merit.
4. Appellant also argues that the court's refusal to grant him a psychiatric examination constituted error. The court is under no duty to grant a psychiatric examination in the absence of a special plea of insanity. Lewis v. State, 239 Ga. 732, 238 S.E.2d 892 (1977); Watkins v. State, 237 Ga 678, 229 S.E.2d 465 (1976); Holsey v. State, 235 Ga. 270, 219 S.E.2d 374 (1975); Taylor v. State, 229 Ga. 536, 192 S.E.2d 249 (1972). Testimony on the part of appellant's counsel that appellant had difficulty "understanding different phases of the law" is not sufficient to establish that appellant was incompetent to stand trial. The trial judge, having observed the defendant at the bench trial of the aggravated assault case and during the lengthy discussion which he had with the defendant in regard to a possible plea to the murder charge, ruled that the defendant was, in his opinion, entirely rational and that he knew exactly what he was doing. Inasmuch as there was no special plea of insanity and inasmuch as the trial judge had observed the defendant's behavior and made his own determination that no psychiatric evaluation was necessary, appellant's third enumeration of error is without merit.
5. Appellant complains that the court erred in making an incorrect charge which was later withdrawn...
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