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Lawskills.com Georgia Caselaw
LACKEY v. ThE STATE.
21381.
Murder. Floyd Superior Court. Before Judge Hicks.
ALMAND, Justice.
1. Special grounds 1, 2, and 3 are without merit for the reason that they are insufficient assignments of error.
2. Special ground 4 is without merit since it is within the discretion of the trial court to permit the jury to view premises, and the trial court's refusal to permit a view is not a matter for review.
3. Special ground 5 is without merit for the trial court did not commit error in refusing to give an incorrect instruction to the jury.
On March 29, 1961, James Lackey was convicted of murder with a recommendation for mercy. Thereafter, the defendant filed his motion for a new trial on the general grounds and later amended this motion by the addition of five special grounds. The motion as amended was denied. To this judgment the defendant excepts.
1. Special grounds 1, 2, and 3, which complain of rulings by the court on evidence, are without merit since they do not set out any objection made at the time of the trial. "To make an objection to the admission of evidence available in the reviewing court, it must appear that the objection was made and upon what grounds it was made to the trial court." Maxwell v. Hollis, 214 Ga. 358, 362 (4) (104 SE2d 893).
2. Special ground 4, objecting to the ruling refusing to permit the jury to inspect the location of the crime, is without merit. Views are within the discretion of the trial court, and refusal to allow a jury to view the scene is not a matter for review by this court. Johnson v. Winship Machine Co., 108 Ga. 554 (2) (33 SE 1013); Smith v. State, 11 Ga. App. 89 (6) (74 SE 711).
Vaughan, 212 Ga. 485 (1) (93 SE2d 743). In the instant case the request did not present a correct statement of the law on the subject of the fears of a reasonable man as a justification for a homicide. Code 26-1012 provides: "It must appear that the circumstances were sufficient to cite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge." The instructions requested wholly omitted the essential element that to make the killing justifiable on the grounds that it was committed under the fears of a reasonable man, it must appear that the homicide was not committed in a spirit of revenge. Johnson v. State, 173 Ga. 734 (1) (161 SE 590). This was an imperfection in the requested charge, and thus, no error was committed in refusing to give it.
4. The evidence authorized the verdict. Accordingly, the general grounds of the motion for a new trial are without merit.
Chastine Parker, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, Assistant Attorney-General, contra.
Fullbright & Duffey, for plaintiff in error.
SUBMITTED SEPTEMBER 12, 1961 -- DECIDED OCTOBER 9, 1961.
Friday May 22 23:36 EDT


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