Powell v. State, 30190

• Decision Date: 16 September 1975
• Docket Number: No. 30190,30190
• Citation: 219 S.E.2d 109,235 Ga. 208
• Parties: Jerome POWELL v. The STATE.
• Court: Georgia Supreme Court

Page 109

219 S.E.2d 109

235 Ga. 208

Jerome POWELL v. The STATE.

No. 30190.

Supreme Court of Georgia.

Sept. 16, 1975.

Thomas J. Ratcliffe, Jr., Hinesville, for appellant.

John W. Underwood, Dist. Atty., Hinesville, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

Appellant was convicted of murder and sentenced in the Superior Court of Bryan County to serve a life imprisonment term for this offense. This appeal enumerates three alleged errors: (1) the trial judge failed to charge the jury on the law of misfortune or accident, which was placed in issue under the appellant's unsworn statement at the trial; (2) the trial judge's charge on reasonable doubt and the burden of the state were argumentative, weighted in favor of a verdict against (appellant), confusing and misleading; and (3) the evidence is legally insufficient to support the jury's verdict of guilty.

The state's evidence authorized the jury to find that in the early evening hours of January 27, 1973, in Bryan County, appellant's sister, Sarah Powell, and her boy friend, Joe Smith, had been to a local club where they had argued. While there, they encountered appellant outside the club and he decided to walk home with them. They walked to the home of Gladys Rivers. Upon arrival, Sarah Powell was crying and appellant tried to make her go inside the house. The victim of the homicide, Vera Dell Powell, appellant's aunt who was temporarily living in the Rivers' house, told appellant not to make his sister, Sarah, go inside the house. This angered appellant and he cursed his aunt Vera Dell, slapped her and then struck her with a sawed-off shotgun which he was carrying at the time. She turned around and appellant shot her with the shotgun, blowing off the top of her head, from approximately two feet away.

Less than two minutes elapsed between the time the victim, Vera Dell Powell, reprimanded appellant until he shot her. After the shooting, appellant fled from the scene of the homicide. Four witnesses, Gladys Rivers, Louvista Rivers, Frank Rivers and Sarah Powell, testified to observing either all or part of these events which resulted in the death of Vera Dell Powell. The appellant elected to make an unsworn statement at the trial in his own defense in which he stated the shotgun accidentally discharged during an argument and struggle between him and the victim at the house. None of the witnesses who testified under oath at the trial corroborated appellant's version of the homicide as being accidental. Held:

1. 'In passing on the general grounds of a motion for new trial, this court passes not on the weight but the sufficiency of the evidence. It is our duty to determine whether the verdict as rendered can be sustained under any reasonable view taken of the proofs submitted to the jury.' Ingram v. State, 204 Ga. 164, 184, 48 S.E.2d 891, 902. The evidence was sufficient to support the verdict of the jury finding the appellant guilty of murder.

2. It will serve no useful purpose to set...