Kessel v. State

• Decision Date: 25 February 1976
• Docket Number: No. 30652,30652
• Citation: 236 Ga. 373,223 S.E.2d 811
• Parties: Emory W. KESSEL v. The STATE.
• Court: Georgia Supreme Court

Page 811

223 S.E.2d 811

236 Ga. 373

Emory W. KESSEL v. The STATE.

No. 30652.

Supreme Court of Georgia.

Feb. 25, 1976.

E. Earl Seals, Hamilton, for appellant.

E. Mullins Whisnant, Dist. Atty., Columbus, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Atlanta, for appellee.

UNDERCOFLER, Presiding Justice.

Emory W. Kessel was convicted of the November 30, 1974, murder of Bill Sidney Simpson and sentenced to life imprisonment.

1. The trial court did not err in failing to charge the jury without request on the law of voluntary and involuntary manslaughter. The defense was based solely on accident. The defendant testified that he used a tactic that he had learned in the army, that he attempted to go up under the victim's arm to drive it upward and bring the weapon down, and that it accidently discharged. This evidence did not raise an issue of voluntary or involuntary manslaughter. Meadows v. State, 230 Ga. 471(3), 197 S.E.2d 698 (1973); Sirmans v. State, 229 Ga. 743(2, 3), 194 S.E.2d 476 (1972). The ruling in State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354 (1976) which holds that a trial judge is not required to charge on a lesser crime of that included in the indictment or accusation without a request will be applied prospectively only.

2. The court did not err in refusing to charge the jury: 'I charge you that, if as a matter of fact, you find that the force the defendant used against the deceased was necessary to prevent death or great bodily harm to the defendant, then the defendant was justified in using such force and you must return a verdict of not guilty,' and, 'I charge you that, if as a matter of fact, you find that the defendant believed the deceased intended to kill him or do him great bodily harm and the defendant's belief was reasonable, then the defendant was justified in using such force against the deceased to the extent that he believed such force was necessary to defend himself, and you must return a verdict of not guilty.'

'A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.' Lewis v. State, 196 Ga. 755, 760(3), 27 S.E.2d 659, 663 (1943). "A request to charge the jury must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.' Spain v. Spain, 203 Ga. 411(2), 47 S.E.2d 279, 280.' Reynolds v. Reynolds, 217 Ga. 234, 269, 123 S.E.2d 115, 141 (1961); Seaboard Coast Line R. Co. v. Thomas, 229 Ga. 301, 190 S.E.2d 898 (1972).

The requested charges of the appellant were incomplete. Code Ann. § 26-902(a, b) (Acts 1968, pp. 1249, 1272).

3. The evidence of the State showed that the appellant's wife was present when the appellant threatened to kill Simpson. In his testimony the appellant testified that his wife was present and that no threats were made. On cross examination the appellant was asked why he did not call his wife as a witness to verify his testimony. Counsel for the appellant stated: 'He's asking for an opinion of the witness he is not qualified to give, Your Honor. The Court: What opinion is that? Counsel: He's asking for the opinion as to who he should call as witnesses. The Court: No, no, he just asked him why if his wife were here if he couldn't call her to testify.'

The appellant contends that if the trial court understood the question to be as delineated above, it should have instructed the State's counsel on improper argument, with or without objection, since the question called for an answer based on law and left an inference with the jury that the appellant had control over whether his wife testified.

There is no merit in this contention. 'The scope of cross examination lies largely within the discretion of the trial court. It will not be disturbed by this court unless it is shown there has been an abuse of that discretion. No such abuse is disclosed by this record.' Crowder v. State, 233 Ga. 789(6), 213 S.E.2d 620, 622 (1975).

4. The court did not err in instructing the jury that, 'The law presumes, ladies and gentlemen, that every homicide is malicious until the contrary appears from circumstances of alleviation, excuse or justification, and it is incumbent upon the defendant to make out such circumstances to your satisfaction unless they appear from the evidence produced against him by the State.'

The appellant contends that this charge was error because there was no presumption of malice since evidence was introduced to show mitigation or justification. The charge of the trial court was...