Witt v. State, 46460
| Decision Date | 05 October 1971 |
| Docket Number | No. 2,No. 46460,46460,2 |
| Citation | 124 Ga.App. 535,184 S.E.2d 517 |
| Parties | Larry W. WITT v. The STATE |
| Court | Georgia Court of Appeals |
Howard, Howard & Hall, William V. Hall, Jr., Decatur, for appellant.
Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Creighton W. Sossomon, Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant was tried for murder and convicted of voluntary manslaughter. Held:
1. Testimony by an investigator that during an interrogation while in custody the defendant 'said he didn't know anything about any shooting', i.e., the cause of the homicide, and that the defendant suggested 'we might have been arresting him for striking the fellow (not the victim of the shooting) in the bar earlier' is not a confession within the scope of the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and the trial judge did not err in refusing to hold a hearing out of the presence of the jury on the matter.
2. Having been tried for murder as defined by Code Ann. § 26-1101(a), and having been convicted of voluntary manslaughter under Code Ann. § 26-1102, the defendant now stands acquitted of the greater offense. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300. Murder under Code Ann. § 26-1101(a) is defined to include malice. Murder under Code Ann. § 26-1101(b), i.e., homicide in the commission of a felony, is an offense 'irrespective of malice.' There is no mention of malice in the present definitions of manslaughter, Code Ann. §§ 26-1102, 26-1103, but 'without malice' is used in the definition under former Code § 26-1006. The committee notes make it clear that no change in substance was intended by the revision, pointing out that lack of malice is a distinguishing characteristic between manslaughter and murder. See Ga.Code Ann., Committee Notes, on revised Title 26, Ch. 26-11, p. 83. The trial judge by his instructions eliminated malice to convict for manslaughter and the defendant has no cause for complaint regarding the instructions on presumption of malice in order to convict for murder.
3. The instructions as here given, that 'the jury may consider words, threats, menaces or contemptuous gestures, if there be any, in passing upon that question as to whether or not the defendant acted in good faith and under the fears of a reasonable man that his life was in danger or that a felony was about to be committed' are substantially identical to the instructions which the Supreme Court held to be free from harmful error in Gore v. State, 155 Ga. 642(6), 118 S.E. 40. The inclusion of 'acted in good faith' does not, in our opinion, add a test not...
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Colson v. State
...court to charge on voluntary manslaughter. Code § 26-1102; Butts v. State, 126 Ga.App. 512, 515(7), 191 S.E.2d 329; Witt v. State, 124 Ga.App. 535, 536(4), 184 S.E.2d 517. 9. The court did not err in refusing to charge that a person claiming the right of self-defense is not required to retr......
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Ex parte Cobb, Crim. No. 76-279.
...the United States Supreme Court decision requiring separate hearing on question of voluntariness of the confession. Witt v. State, 124 Ga.App. 535, 184 S.E.2d 517, 518 (1971). 15 23 C.J.S. Criminal Law § 816, p. 16 State v. Miller, 211 S.C. 306, 45 S.E.2d 23 (1947). Also, see Cram v. United......
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Richards v. State
...has no cause for complaint regarding the instructions on presumption of malice in order to convict for murder." Witt v. State, 124 Ga.App. 535(2), 184 S.E.2d 517. 7. Assuming defendant properly raised the issue of "newly discovered evidence" in his motion for new trial, the defendant failed......
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Hancock v. State
...to authorize the judge to charge on voluntary manslaughter and defendant's contention is withous merit. See Witt v. State, 124 Ga.App. 535, 536(4), 184 S.E.2d 517 and Lawton v. State, 125 Ga.App. 652, 188 S.E.2d 5. The other enumerations are deemed abandoned as they were neither argued nor ......