Sutton v. State

• Decision Date: 05 February 1980
• Docket Number: No. 35776,35776
• Citation: Sutton v. State, 264 S.E.2d 184, 245 Ga. 192 (Ga. 1980)
• Parties: SUTTON v. The STATE.
• Court: Georgia Supreme Court

Page 184

264 S.E.2d 184

245 Ga. 192

SUTTON v.The STATE.

No. 35776.

Supreme Court of Georgia.

Submitted Jan. 21, 1980.

Decided Feb. 5, 1980.

Dozier, Daniel & Williams, J. Robert Daniel, Macon, for appellant.

W. Donald Thompson, Dist. Atty., Willis B. Sparks, III, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., William B. Hill, Jr., Staff Asst. Atty. Gen., for appellee.

UNDERCOFLER, Presiding Justice.

Sutton was convicted of the felony murder of his wife and sentenced to life.He appeals.We affirm.

At trial, three witnesses who were guests in the Sutton home testified that he became angry at his wife, Odessa, for failing to shut the back door to their apartment.He struck her over the head twice with a guitar.Then, he seized her from behind, placed his arm around her throat, drew a pistol and shot her behind the right ear, killing her.These witnesses stated Sutton's wife never became aggressive and did not place her husband's life in jeopardy in any manner.The medical examiner's testimony corroborated the testimony of the witnesses, explaining Odessa Sutton was killed by a single bullet, fired from two or three inches away from her head, which entered her brain just behind the right ear.This testimony also showed she had a laceration on her scalp.

Sutton, in a statement given to police and later in testimony given from the stand, raised the defense of justification (self-defense).He stated as he entered a bedroom, his wife was standing there pointing a pistol at him.He said he tried to get the pistol away from her.They struggled, and as he tried to get the gun pointed up in the air, it went off, killing his wife.

He does not raise the question of the sufficiency of the evidence, counsel stating in his brief it was sufficient to support "virtually any verdict the jury saw fit to return."He enumerates three errors, however, urging that the court below erred in charging the law of felony murder when the indictment charged him only with malice murder, erred in failing to charge the law of simple assault in addition to that charging aggravated assault, and erred in failing to grant a new trial.

1.Appellant concedes his first enumeration of error reargues the policy contentions raised and decided adversely to him in Baker v. State, 236 Ga. 754, 225 S.E.2d 269(1976); however, he urges our reconsideration.¹We decline to do so.The court properly charged the law of malice murder and felony murder.Burke v. State, 234 Ga. 512, 514, 216 S.E.2d 812(1975).It also properly charged that aggravated assault can be the felony triggering the operation of the felony-murder rule.Baker v. State, supra;Cain v. State, 232 Ga. 804, 209 S.E.2d 158(1974).Appellant also argues there was no direct evidence that the deceased knew a pistol was being held at her head, thus a charge on aggravated assault was improper.Awareness is not an essential element of the crime of aggravated assault.Code Ann. § 26-1302.

2.There is no merit in appellant's contention that a charge on simple assault (Code Ann. § 26-1301) must be given in order to complete the definition of aggravated assault (...