Thomas v. State, 74749

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG; DEEN, P.J., and POPE
• Citation: Thomas v. State, 361 S.E.2d 21, 184 Ga.App. 131 (Ga. App. 1987)
• Decision Date: 09 September 1987
• Docket Number: No. 74749,74749
• Parties: THOMAS v. The STATE.

Page 21

361 S.E.2d 21

184 Ga.App. 131

THOMAS v. The STATE.

No. 74749.

Court of Appeals of Georgia.

Sept. 9, 1987.

Christopher C. Edwards, Timothy C. Cramer, Griffin, for appellant.

Johnnie L. Caldwell, Jr., Dist. Atty., Anne Cobb, Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

George L. Thomas, appellant, was charged with the malice murder of Randy Pritchard, but was convicted of voluntary manslaughter. Thomas and his girl friend, Cathy Mays, went to the Green Front Cafe, in Griffin, Georgia, around midnight on April 2, 1984. They purchased sandwiches and walked outside to the front of the cafe, where a dice game was in progress. Pritchard was shooting dice and had lost around $25. Thomas said he had known Pritchard for some time and laughed at him. Pritchard and Thomas grabbed each other and got into a shoving match which was broken up by Thomas' brother, Jerry. Thomas testified that Pritchard, who was larger than he, told Thomas he could beat him, and Thomas told Pritchard he could not. Pritchard said, "you wait until I get back" and left for approximately 15 minutes. Pritchard walked toward Thomas, and Thomas said he thought Pritchard had left to get a knife, and he "stepped back.... Then he walked up on me again. That's when I hit him with a stick...." Thomas struck Pritchard on the right side of his head with a one-by-four timber, approximately three feet in length. Pritchard's skull was fractured and he died shortly thereafter. The jury returned a verdict of guilty of voluntary manslaughter, and Thomas brings this appeal. Held:

1. Appellant contends the trial court erred in failing to grant his motion for directed verdict of acquittal at the close of the State's evidence, and again at the close of all the evidence. In the brief, counsel argues that the "uncontroverted and internally consistent statement and testimony of appellant simply failed to authorize a malice murder conviction, and therefore the motions for directed verdict of acquittal, should have been granted of the indicted offense, murder, and the defendant acquitted and discharged."

Appellant misperceives the purpose of a motion for a directed verdict of acquittal. The statutes states, inter alia: "Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or 'not guilty' as to the entire offense ... the court may direct the verdict of acquittal to which the defendant is entitled...." (Emphasis supplied.) OCGA § 17-9-1(a). The directed verdict of acquittal demanded by appellant was to "the entire offense" of malice murder, and was inappropriate if the evidence would sustain conviction of any lesser included offense. See Summers v. State, 99 Ga.App. 183(2), 108 S.E.2d 140. It is only when a verdict of acquittal as to all offenses is the only legal finding possible that a directed verdict of acquittal is applicable. Bell v. State, 15 Ga.App. 718(2), 84 S.E. 150. Moreover, any issue of malice involves the intent of the perpetrator of a crime and intent is a question for the trier of fact. Sheffield v. State, 241 Ga. 245(2), 244 S.E.2d 869. The trial court did not err in refusing to grant a directed verdict of acquittal of the malice murder offense.

2. Appellant claims the evidence is insufficient as a matter of law for a finding of guilty of voluntary manslaughter. Thomas claims to have acted reasonably and in self-defense. Voluntary manslaughter is defined as causing the death of another under circumstances which would otherwise be murder except that the perpetrator "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...." OCGA § 16-5-2(a). A person is justified in using force against another to the extent he reasonably believes such force is necessary to defend himself. OCGA § 16-3-21(a). However, "a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony." ...