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HILL v. THE STATE.
60210.
DEEN, Chief Judge.
Voluntary manslaughter. Bibb Superior Court. Before Judge Morgan.
are unsupported by evidence. Assuming there was no evidence of flight (the defendant on leaving the scene announced that she was going home and the police knew where to find her) this portion of the charge was at most merely irrelevant, being one of a number of stated exceptions to the rule concerning the use of force in self-defense. The true question is whether an abstractly correct charge not authorized by the evidence is calculated to confuse and mislead the jury. The harmless error question in jury instructions as applied to criminal cases is discussed at length in Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); where it is obviously highly probable that the error, if existing, did not contribute to the verdict, a reversal will not result. See also Morrison v. State, 147 Ga. App. 410 (249 SE2d 131) (1978); Bradham v. State, 148 Ga. App. 89 (250 SE2d 801) (1978). Taking the charge as a whole we find no reversible error.
2. Following an objection by defense counsel to the cross examination of the defendant regarding a defense witness, the state's attorney rephrased his question to inquire whether she and the witness contradicted each other concerning a statement of the defendant, to which the defendant replied: "She was all upset over it too. She might have forgot it." The question was not objectionable as invading the province of the jury or as unduly stressing conflicts in the evidence.
3. This is not a murder-or-nothing case. There is ample evidence that, immediately following a verbal altercation in which tempers flared on both sides, the victim tried to approach the defendant who, in the stated belief that the victim intended assaulting her with a knife (although she was in fact unarmed), fired the shot in the heat of anger and fear and as the result of "sudden, violent and irresistible passion." In such cases the sufficiency of the provocation is a question for the jury. Reynolds v. State, 131 Ga. App. 247 (205 SE2d 536) (1974).
Hugh Q. Wallace, for appellant.
SUBMITTED JULY 7, 1980 -- DECIDED SEPTEMBER 4, 1980 -- REHEARING DENIED SEPTEMBER 17, 1980.
Friday May 22 01:38 EDT


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