Syms v. State, 69927

• Decision Date: 20 June 1985
• Docket Number: No. 69927,69927
• Citation: 332 S.E.2d 689,175 Ga.App. 179
• Parties: SYMS v. The STATE.
• Court: Georgia Court of Appeals

Page 689

332 S.E.2d 689

175 Ga.App. 179

SYMS v. The STATE.

No. 69927.

Court of Appeals of Georgia.

June 20, 1985.

W. David Sims, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Syms appeals from a conviction of voluntary manslaughter.

1. Syms contends that the trial court erred in overruling his motion for new trial on the basis that the verdict was contrary to law and lacked sufficiency of evidence.

Appellant was dating the ex-wife of the deceased, Elton Mobley. Syms felt that Mobley was upset and was harassing him because of this. On March 7, 1981, he went to the apartment where Mobley was staying to talk about his relationship with the victim's former wife and after some discussion, the victim pushed Syms into a chair, sat down on the couch, and proceeded to play with a pistol by continually clicking the safety catch on and off. It was later discovered that the .357 magnum was loaded and that Mobley had consumed methaqualone and cocaine. The discussion about the former Mrs. Mobley continued. The victim pointed the gun at Syms and made threats to blow away parts of Syms' body until he revealed where the ex-wife was. When Mobley glanced away, Syms shot him twice with a gun which appellant testified he had spied lodged between the cushion and arm of the chair in which he was sitting. He then left the scene. Defendant testified he was afraid of Mobley due to his lifestyle and his reputation of being a good shot.

"A person commits the offense of voluntary manslaughter when he causes the death of another human being, under circumstances which would otherwise be murder, and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder...." Code Ann. § 26-1102 (in force at the time of incident; now OCGA § 16-5-2 which became effective November 1, 1982). "When a homicide is neither justifiable nor malicious, it is manslaughter, and if intentional, it is voluntary manslaughter." Starr v. State, 134 Ga.App. 149, 213 S.E.2d 531 (1975).

Syms maintains that the evidence shows he shot Mobley in self-defense, but the evidence does not require such a finding. The distinguishing characteristic between voluntary manslaughter and justifiable homicide is that the accused was so influenced and excited that he reacted passionately rather than simply to defend himself. Gregg v. State, 233 Ga. 117, 121, 210 S.E.2d 659 (1974), aff'd, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Circumstances necessary to show voluntary manslaughter, as opposed to justifiable homicide, relate to a situation which arouses sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself. Williams v. State, 232 Ga. 203, 204, 206 S.E.2d 37 (1974), overruled on other grounds, Jackson v. State, 239 Ga. 40, 235 S.E.2d 477 (1977).

In the instant case, any reaction indicating fear on the part of appellant because of the victim's menacing words, physical aggression by pushing, and gestures with the pistol do not require the finding that Syms acted out of self-defense. The fear of some danger can be sufficient provocation to excite the passion necessary for voluntary manslaughter. See White v. State, 129 Ga.App. 353, 354, 199 S.E.2d 624 (1973). "While words and threats alone are generally not sufficient provocation, the issue of whether a reasonable person acts as the result of an irrestible passion may be raised by words which are connected to provocative conduct by the victim." Washington v. State, 249 Ga. 728, 731, 292 S.E.2d 836 (1982).

Although there is evidence that the victim's roommate overheard some of the shooting episode, appellant was the only eyewitness. Despite this, the jury was not required to believe his self-defense testimony. Jenkins v. State, 241 Ga. 212, 244 S.E.2d 868 (1978); Daniels v. State, 172 Ga.App. 315, 323 S.E.2d 229 (1984).

The evidence adduced in the trial of the instant case would authorize a rational trier of fact to find the elements of voluntary manslaughter, and the absence of self-defense, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Daniels v. State, supra. What prompted defendant to shoot was the primary issue. The evidence was in dispute as to whether he acted out of passion or justifiable self-defense, and...