Swett v. State, 33812
| Decision Date | 26 September 1978 |
| Docket Number | No. 33812,33812 |
| Citation | 248 S.E.2d 629,242 Ga. 228 |
| Parties | SWETT v. The STATE. |
| Court | Georgia Supreme Court |
Rice & Lawrence, George D. Lawrence, Jr., Eatonton, for appellant.
Joseph H. Briley, Dist. Atty., Sally Rich Jocoy, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., William B. Hill, Jr., Staff Asst. Atty. Gen., for appellee.
The appellant was indicted for the murder by shooting of his wife, Frances Swett. Upon trial by jury he was found guilty and received a life sentence. He appeals his conviction to this court assigning one enumeration of error, "The trial court erred in failing, upon proper request, to charge the jury with respect to the law of voluntary manslaughter."
The record is clear that the defendant made a timely, written request to charge on the general law of voluntary manslaughter, and the trial court announced its intention to so charge unless objection was made thereto by the state. The state objected and the trial court then determined that the request was not required, and refused the request.
We affirm.
1. We have stated on many occasions that in the trial of a murder case, if there be any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instruction as to the law of both offenses should be given to the jury. See Banks v. State, 227 Ga. 578, 580, 182 S.E.2d 106 (1971). It has also been stated in State v. Stonaker, 236 Ga. 1, 2(3), 222 S.E.2d 354, 356 (1976), that, "The state or the accused may, by written application to the trial judge at or before the close of the evidence, request him to charge on lesser crimes that are included in those set forth in the indictment or accusation, and his failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error."
We also made clear in Henderson v. State, 234 Ga. 827, 831, 218 S.E.2d 612, 616 (1975), followed approvingly by Gillespie v. State, 236 Ga. 845, 225 S.E.2d 296 (1976), that, "Although the jury is the judge of whether there was an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, it is a question of law for the courts to determine whether there is slight evidence that the defendant acted as the result of sudden, violent and irresistible passion resulting from serious provocation."
We must consider then, whether or not the trial judge committed error in refusing the written request to charge in this case, after having heard all of the evidence.
The pertinent evidence showed that the appellant was at his home on the day of the homicide and with the help of two adult relatives was packing belongings in preparation for moving to Florida the following day. The deceased wife returned home at approximately two o'clock p. m. that day with several hamburgers. Appellant did not like that particular brand and threw them over the counter. He had been drinking beer during the day. One of the relatives, a daughter-in-law, wanted to leave but was asked by the deceased to stay, being told that probably before the day was over, "He'll kill me or I'll kill him," referring to appellant.
The relative and the deceased began to clear out drawers in the bedroom. The relative left the room momentarily and on the way back she heard the deceased say, "Oh, no, Jake, don't." She then heard a gasp and two shots. Upon re-entering the room the deceased was against a dresser, and the appellant was standing near the bed with a gun. The other relatives managed to get the gun away from appellant, and the gun was fired a third time during the melee, but without resulting injury. The expert testimony showed that two bullets entered and exited the deceased's body and were fired at very close range. Appellant was arrested immediately and upon being advised of his rights, made a statement to an investigating officer, in which he said that his wife had closed out their joint bank account; that she had threatened to stay in Georgia unless appellant gave up the custody of his adopted son; that she would not allow him to communicate with his children from his first marriage; that she had turned over all bank and tax papers, credit cards and insurance policies to her lawyer; that she had turned him out of the house in 1976 in cold, rainy weather; that she once damaged his truck with a broom and hit him; that she threatened to call appellant's prospective employers to tell them not to hire appellant; and that she wanted the proceeds from a land sale they were making to be put in her name only. The appellant further stated that while the parties were packing, he went to the car to get some...
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Godfrey v. Francis, Civ. A. No. C84-354R.
...act of violent passion, but also some serious provocation sufficient to excite such passion in a reasonable person." Swett v. State, 242 Ga. 228, 230, 248 S.E.2d 629 (1978). Here, the Court gleans no evidence of such provocation nor does Godfrey point any out. Therefore, the Court finds tha......
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Hardy v. State
...an act of violent passion, but also some serious provocation sufficient to excite such passion in a reasonable person. Swett v. State, 242 Ga. 228, 248 S.E.2d 629 (1978); Smith v. State, 49 Ga. 482 (1873). We conclude from a study of the record that the evidence did not warrant a charge on ......
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Phillips v. State, 67830
...character may of itself constitute a defense in behalf of an accused so as to generate reasonable doubt of guilt..." Swett v. State, 242 Ga. 228(2), 248 S.E.2d 629 (1978). See Sims v. State, 84 Ga.App. 753(2), 67 S.E.2d 254 (1951). When a defendant has offered evidence of his own good chara......
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Harris v. State
...character may of itself constitute a defense in behalf of an accused so as to generate reasonable doubt of guilt" (Swett v. State, 242 Ga. 228(2), 248 S.E.2d 629 (1978)), and a jury instruction to that effect. State v. Braddy, supra. The State may also use a defendant's prior convictions to......