McClendon v. State
| Decision Date | 06 September 1973 |
| Docket Number | No. 28181,28181 |
| Citation | 231 Ga. 47,199 S.E.2d 904 |
| Parties | Bobby Jerry McCLENDON v. The STATE. |
| Court | Georgia Supreme Court |
Arrington & Rubin, S. Richard Rubin, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Carter Goode, Morris H. Rosenberg, Dennis S. Mackin, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Atlanta, Michael W. Dyer, Decatur, for appellee.
Syllabus Opinion by the Court
Bobby Jerry McClendon was convicted of the murder of Ronald Riley and sentenced to life imprisonment. He appeals to this court. Held:
1. The appellant contends that the trial court erred in overruling his motion to strike certain testimony of a witness for the State because such testimony was without foundation, unresponsive to the question, and because the witness was not qualified to state how much beer would be necessary to make a person drunk.
The record shows the counsel for the appellant had asked the state's witness on cross examination about a 'six-pack' of beer which she and the victim had been drinking prior to the homicide. The witness testified that she drunk about all of it. ' The appellant moved to strike the emphasized portion of the answer.
It is not necessary to decide whether the motion to strike this testimony is meritorious since its admission was harmless. Robinson v. State, 130 Ga. 361, 60 S.E. 1005; Williams v. State, 145 Ga. 177(3), 88 S.E. 958, and Lively v. State, 178 Ga. 693(2), 173 S.E. 836.
2. The trial court charged the jury: '. . . that if it be shown that the accused by the use of a deadly weapon used in a manner likely to kill, took the life of Ronald Riley in manner and form, as alleged in this indictment, the use of such deadly weapon being intentional on the part of the accused from such, the law would presume that the killing was malicious and, therefore, murder; and, it would devolve upon the accused to justify or mitigate the homicide, it being the law that he may do so by pointing not only to evidence which he produces on his own behalf and his statement before you, but by pointing to evidence introduced against him by the State.'
The appellant contends that this charge is erroneous because it shifted the burden of proof to him to justify or mitigate the homicide. There is no merit in this contention. Fisher v. State, 228 Ga. 100, 101, 184 S.E.2d 156; Chandle v. State, 230 Ga. 574, 198 S.E.2d 289.
3. The appellant contends that the trial court erred in charging the jury that mutual combat as 'a mutual intention to fight with deadly weapons.'
'Mutual combat exists where there is a fight with dangerous or deadly weapons, and when both parties are at fault and are willing to fight because of a sudden quarrel.' Langford v. State, 212 Ga. 364, 366, 93 S.E.2d 1, 3; Lucear v. State, 221 Ga. 572(1), 146 S.E.2d 316.
This contention is without merit.
4. The appellant contends that the trial court erred...
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Holloway v. McElroy
...time of the petitioner's trial, Georgia nominally placed the burden of proving self-defense on the defendant. See, McClendon v. State, 231 Ga. 47, 199 S.E.2d 904 (1973). This, however, is not simply a case of the trial judge's instruction placing the burden of proof of an affirmative defens......
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Burden v. State, 38766
... ... The charge as given fully covered the subject matter contained in the request, and the failure to charge in the exact language requested was not error. McClendon ... v. State, 231 Ga. 47, 199 S.E.2d 904 (1973); Mason v. State, 236 Ga. 46(5), 222 S.E.2d 339 (1976); Nelson v. State, 247 Ga. 172(12), 274 S.E.2d 317 (1981) ... 4. Burden contends in his eighth enumeration of error that the trial court erred in failing to give his requested ... ...
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Redding v. State
...(1974) (not error to refuse charge on mistake of fact when "trial judge fully charged on justifiable homicide"); McClendon v. State , 231 Ga. 47, 48 (4), 199 S.E.2d 904 (1973) (requested charge on mistake of fact not required when "court fully covered the principles of justifiable homicide,......
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Mason v. State
...not error to fail to charge in the exact language requested. Young v. State, 226 Ga. 553(5), 176 S.E.2d 52 (1970); McClendon v. State, 231 Ga. 47(4), 199 S.E.2d 904 (1973). 6. In enumeration of error number 9, appellant alleges that court erred in refusing to give the following requested ch......