Montgomery v. State

• Decision Date: 27 February 1985
• Docket Number: No. 69288,69288
• Parties: MONTGOMERY v. The STATE.
• Court: Georgia Court of Appeals

Page 770

327 S.E.2d 770

173 Ga.App. 570

MONTGOMERY v. The STATE.

No. 69288.

Court of Appeals of Georgia.

Feb. 27, 1985.

C. Ronald Patton, Rome, for appellant.

F. Larry Salmon, Dist. Atty., William H. Boggs, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

Appellant was convicted of voluntary manslaughter and filed the instant appeal.

The evidence disclosed that appellant had been having an affair with Geneva Hughes, the victim, for two years. The afternoon of Hughes' death appellant came to her home with a pistol in his pocket. They went in the kitchen and Hughes' mother heard her daughter say, "Don't shoot me," and the elder Mrs. Hughes went in the kitchen. She saw appellant throw Geneva on the floor, and at the same time he dropped his pistol. Appellant struck Geneva several times and recovered his pistol. Mrs. Hughes threw herself across Geneva and begged appellant not to shoot her. Appellant then shot Geneva five times, resulting in her death. Although appellant testified he only fired one shot and claimed that thereafter Mrs. Hughes had the pistol, Mrs. Hughes testified that appellant "just shot and shot and shot." A pathologist testified there were five gunshot wounds in Geneva's body, as well as several stab wounds. Appellant admitted at trial that he had a knife in his hand when he was striking Geneva.

1. An examination of the record reveals that the general grounds are without merit. We find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2.a. Appellant was charged with malice murder and contends the trial court erred by not charging on the lesser offense of involuntary manslaughter. After giving its charge to the jury the court asked if there were any exceptions to the charge. Appellant took exception to the court's charge on justification, but did not object to the court's failure to charge on involuntary manslaughter. Thus, he waived his right to enumerate error on the court's failure to give this charge. White v. State, 243 Ga. 250, 251, 253 S.E.2d 694 (1979); Brown v. State, 154 Ga.App. 358, 359(1), 268 S.E.2d 731 (1980) b. Appellant also contends the trial court's charge on justification was burden shifting and was incorrect as a matter of law. The charge complained of stated: "I charge you that it is not every danger to the slayer which justifies the killing of another. But that it is a danger to his life so great, that in order to save his own life, at the time of the killing, the killing of the other was absolutely necessary." Immediately after giving this charge the trial court read verbatim to the jury the provisions of OCGA § 16-3-21(a) and (b). The pertinent portion of § 16-3-21(a) sets forth the standard of force allowed in self-defense as follows: "[H]owever, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself...."

The charge complained of was a correct statement of the law under former Georgia Code § 26-1014 (1933), but was eliminated from the 1968 Criminal Code of Georgia. Ga.L.1968, 1249 et seq., at 1272-1274. Thus, the charge complained of is not correct under current law. However, under the circumstances of this case there was no error.

The evidence against appellant was overwhelming and indicated clearly that he was the aggressor. He admitted holding a knife when he was striking the victim and admitted he fired at least one shot while the victim was on the floor with her mother on top of the victim begging appellant not to shoot her daughter. Since a person is not justified in using force if he was the aggressor, OCGA § 16-3-21(b)(3), appellant was not entitled to a charge on justification. Thus, the charge on justification was actually a beneficial gratuity to which he was not entitled under the evidence. Copeland v. State, 139 Ga.App. 55, 58(3), 227 S.E.2d 850 (1976). Accordingly, appellant cannot complain of any alleged error in the charge on justification. Id.

3. Appellant contends error by the trial court in allowing the prosecuting attorney to ask witnesses who had testified as to appellant's good reputation if they had heard he had been arrested or convicted of certain offenses. This contention has been decided adversely to appellant. Whatley v. State, 131...