Kesler v. State
| Decision Date | 23 September 1975 |
| Docket Number | No. 30279,30279 |
| Citation | 219 S.E.2d 145,235 Ga. 251 |
| Parties | Anthony Parks KESLER v. The STATE. |
| Court | Georgia Supreme Court |
L. Eddie Benton, Jr., Commerce, for appellant.
Nat Hancock, Dist. Atty., Jefferson, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Staff Asst. Atty. Gen., Atlanta, for appellee.
Appellant was convicted by a jury in Banks Superior Court of murdering Marvin D. Massey and received a sentence of life imprisonment. His appeal to this court rests upon several enumerations of error relating to the jury instructions of the trial court. The appellant admitted the homicide but defended the murder charge on the basis that he acted in self defense and that the homicide was justifiable. We find no reversible error and affirm the judgment.
Appellant and the decedent had an argument on the evening of the homicide about some money which the decedent owed to a third party. Apparently, the appellant had supported the third party's claim that the decedent owed the money and should pay it. The decedent got the impression that appellant was trying to take the money from him and resented it. Appellant initiated the verbal argument that evening but no physical blows were exchanged between the parties. Both men had been drinking intoxicants. Finally, after an exchange of unpleasantries, decedent told appellant he 'had had about enough of him,' and appellant replied that 'he'd had about enough of (decedent) too.' The decedent then grabbed at appellant twice and, in his second effort, fell to the ground. Appellant was backing up and the decedent was advancing toward him. As the decedent moved toward appellant, he put his hand in his pocket and appellant apparently thought the decedent was armed. Appellant pulled out his gun and told the decedent to stop, and when he did not, appellant shot him. There was evidence the decedent was unarmed on the evening of the homicide. However, appellant contended that the decedent had threatened to shoot him on prior occasions and that he shot the decedent out of fear for his own life, believing that the decedent was about to shoot him. After the shooting, appellant went to the county jail, knocked on the door of the sheriff's living quarters and, upon the sheriff's opening the door, went in and told the sheriff he had just shot Marvin Massey. He turned over the gun to the sheriff and then stayed at the jail. Appellant did not relate all the details at that time but subsequently, after being advised of his constitutional rights, made a statement to a G.B.I. officer about the events surrounding the shooting. In this statement, appellant admitted he shot the decedent and offered his explanation of why and how it occurred.
Appellant contends the trial court erred in charging the jury on the law of admissions and incriminating statements because appellant's statement and testimony at trial shows circumstances of justification or legal excuse for the homicide. Appellant relies upon Daniel v. State, 187 Ga. 411, 1 S.E.2d 6, in support of this enumeration of error.
It must be borne in mind that the trial court did not charge on the law of confessions. Daniel held (in Div. 4) that if a defendant makes an extrajudicial statement admitting a homicide but couples the admission with facts which excuse or justify the homicide, the defendant's statement is not a confession and it is error to charge the law of confessions. Thus Daniel does not support appellant's contention but rather indicates the trial court correctly tailored its charge to the facts of the case by omitting a charge on the law of confessions. The charge given, covering admissions and incriminating statements, was appropriate and adjusted to the evidence (see Parker v. State, 218 Ga. 654(2), 656, 129 S.E.2d 850 (1963); cf. O'Neal v. State, 213 Ga. 232, 98 S.E.2d 376 (1957)), and no error appears from this enumeration.
Appellant also contends the trial court failed to recharge the jury, upon request by the jury, on the law applicable to the facts of the case. The transcript shows that the jury came in and the foreman stated to the trial judge that he understood the judge had made some reference in his charge to involuntary manslaughter being in issue in the case. The trial judge then instructed...
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...where the jury requests a recharge on a specific issue, the trial court is not required to recharge the jury in toto. Kesler v. State, 235 Ga. 251, 219 S.E.2d 145 (1975); Creamer v. State, 229 Ga. 704, 194 S.E.2d 73 (1972). In its original charge to the jury, the court charged as to malice ......
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..." 'the giving of a re-charge to the jury as to one issue in the case does not require a re-charge in toto.' " Kesler v. State, 235 Ga. 251, 253, 219 S.E.2d 145, 147 (1975). Answering his second point, at no time did Aguilar request the additional language which he now claims was required to......
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Herrmann v. State
...was the cause of the decedent's death and amounted to murder under the judge's instructions. We find no error of law. See, Kesler v. State, 235 Ga. 251, 219 S.E.2d 145. Enumerations of error directed to the admission into evidence of a blood sample and a bullet extracted from the body of th......
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Futch v. State, 58122
...manslaughter or was justifiable. Based upon the recent decisions of Lavender v. State, 234 Ga. 608, 216 S.E.2d 855; Kesler v. State, 235 Ga. 251, 254, 219 S.E.2d 145, and Murray v. State, 138 Ga.App. 776, 777, 227 S.E.2d 428, it was not necessary for the trial court to instruct the jury tha......