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COLES v. THE STATE.
40748.
CLARKE, Justice.
Murder, etc. Fulton Superior Court. Before Judge Fryer.
Chester Coles was convicted of the murder of John Alvin Green and sentenced to life imprisonment. He was also convicted of possession of a firearm by a known felon, OCGA 16-11-13, and sentenced to five years in prison to run concurrently with the life sentence. The facts are, very simply, that appellant walked up to the victim, who was standing with another man outside a convenience store in the Capitol Homes housing project in Fulton County, and, after mumbling something indistinguishable to the victim, fired two shots at him. The victim died several minutes later. Three eye witnesses testified at trial to the shooting. Appellant admitted firing the shots but contended that Green shot first. He finally admitted at trial that he saw no gun but that Green had a "pipe object."
Appellant's sole enumeration of error is that the court refused to give his requested charge on voluntary manslaughter. There was no evidence of provocation or of passion of any kind. In fact, the exchange between the appellant and the victim consisted of the appellant's mumbling something and the victim's inquiry, "Say what?" The shots immediately followed. There was no evidence of any contact prior to the encounter which led to the shooting which would support a charge of voluntary manslaughter. In the absence of any evidence to support a charge, the court did not err in refusing to give the charge requested. This is particularly true where the defense is justification rather than provocation. Saylors v. State, 251 Ga. 735 (309 SE2d 796) (1983). At trial appellant answered a question as to whether he had any reason to kill Green by stating that other than to save his own life he had no reason. Thus he himself refuted any claim of provocation.
Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Assistant District Attorney, Michael J. Bowers, Attorney General, Dennis R. Dunn, for appellee.
J. Russell Mayer, for appellant.
DECIDED MAY 22, 1984.
Thursday May 21 17:47 EDT


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