Ogletree v. State, 18006
| Decision Date | 12 November 1952 |
| Docket Number | No. 18006,18006 |
| Citation | 73 S.E.2d 201,209 Ga. 413 |
| Parties | OGLETREE v. STATE. |
| Court | Georgia Supreme Court |
Reuben A. Garland, Marvin O'Neal, Jr., Atlanta, for plaintiff in error.
Benjamin B. Garland, Sol. Gen., Jackson, A. M. Zellner, Hugh D. Sosebee, Forsyth, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
1. The defendant was indicted by a grand jury in the Superior Court of Monroe County for the murder of James William Bell and, upon his conviction of that offense without any recommendation, was sentenced to be electrocuted. The verdict, as the record shows, is amply supported by evidence and has the approval of the trial judge; this being true, the general grounds of the motion for new trial are without merit.
2. The court charged: 'Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary in the commission of an unlawful act, or a lawful act without due caution and circumspection.' In addition to this the accused, in writing, requested the following charge: 'If the homicide was unlawful and, if there was no intent to kill and no malice, and it was without any mixture of deliberation whatever, but was in the commission of an unlawful act, the offense would be involuntary manslaughter in the commission of an unlawful act.' It is alleged in the special ground 1 of the motion for new trial that the court erred in failing to give the requested charge, since it was fully authorized by the defendant's statement. There is no merit in this. The requested charge is not adjusted to the evidence. It is not alleged in the motion for new trial, or otherwise shown by the record, that the request was made, as required by the statute and the decisions of this court, before the jury retired to consider the case; and such allegation being necessary, this ground of the motion is incomplete and accordingly shows no error. See Brooks v. State, 96 Ga. 353, 23 S.E. 413; Rogers v. Manning, 200 Ga. 844, 38 S.E.2d 724; Ehrlich v. Mills, 203 Ga. 600, 48 S.E.2d 107; Woodruff v. State, 204 Ga. 17, 48 S.E.2d 885; McLeod v. State, 22 Ga.App. 241, 95 S.E. 934; Code, § 81-1101.
3. Special ground 2 of the motion complains of the following charge: For no reason assigned is this excerpt from the charge erroneous. When, as in this case, the State's evidence shows the commission of a homicide by the accused, by the use of a deadly weapon, the law presumes murder, and it is then incumbent upon the defendant to show the killing to have been otherwise. Cohron v. State, 20 Ga. 752; Hooper v. State, 52 Ga. 607, 608; Vaughn v. State, 88 Ga. 731(4), 16 S.E. 64; Robinson v. State, 129 Ga. 336(3), 58 S.E. 842; Johnson v. State, 130 Ga. 27(1), 60 S.E. 160. And this court has frequently held that, when the State proves that the defendant killed the person named in the indictment by the use of a deadly weapon, in the county charged, it is proper for the judge to charge the jury that the law presumes every homicide to be malicious, until the contrary appears from circumstances of alleviation, or excuse, or justification, and that it is incumbent on the prisoner to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him. Mann v. State, 124 Ga. 760, 53 S.E. 324, 4 L.R.A.,N.S. 934; Delk v. State, 135 Ga. 312, 69 S.E. 541, Ann.Cas. 1912A, 105; Turner v. State, 139 Ga. 593, 77 S.E. 828; Fitzpatrick v. State, 149 Ga. 75(3), 80, 99 S.E. 128; Lively v. State, 178 Ga. 693, 173 S.E. 836; Mattox v. State, 181 Ga. 361, 182 S.E. 11; Myrick v. State, 199 Ga. 244, 248(1), 34 S.E.2d 36. In the Mattox case it was said: 'The charge that the law presumes every homicide felonious until the contrary appears from circumstances of alleviation or excuse or justification, and that it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the jury unless they arise out of the evidence produced against him, was substantially correct.' [181 Ga. 361, 182 S.E. 12.] In this case, the State proved by several witnesses that the...
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...of this Code section in its entirety, even though there was no issue of involuntary manslaughter, was not error, see Ogletree v. State, 209 Ga. 413, 73 S.E.2d 201. The judge went on to define voluntary manslaughter and to state the punishment for this offense, and he further charged that th......
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