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JONES v. THE STATE.
36065.
CLARKE, Justice.
Murder, etc. Fulton Superior Court. Before Judge Alverson.
Appellant appeals from his convictions for aggravated assault and for murder. Appellant was sentenced to life imprisonment for murder and ten years for aggravated assault, the latter sentence to run concurrently with the life sentence. Appellant appeals from both convictions. He enumerates as error in regard to the aggravated assault conviction the general grounds that the verdict is contrary to the evidence, against the weight of the evidence, and contrary to the law and principles of justice and equity. He charges five enumerations of error connected with his murder conviction.
2. Appellant's first enumeration is that the verdict is contrary to the evidence, the verdict is against the weight of the evidence, and the verdict is contrary to law and principles of equity and justice. The testimony in the case revealed that three eyewitnesses observed appellant shoot the victim at point blank range, striking him in the neck. Two of the eyewitnesses saw appellant chase the victim across the street and saw him fire on the victim again as the victim attempted to secure help from a policeman. In view of this eyewitness testimony and in view of the fact that no explanation or mitigating circumstances were offered by appellant, appellant's first enumeration of error is without merit. Jackson v. Virginia, supra; Lamar v. State, 243 Ga. 574 (255 SE2d 51) (1979).
3. Appellant contends that the court erred in failing to charge voluntary manslaughter, Code Ann. 26-1102. Testimony at the trial indicated an argument took place between appellant and the victim. The evidence shows, however, that the argument was initiated by appellant, who accused the victim of attempting to rob appellant's father. There was no evidence of any threat made by the victim, and the testimony showed that although the victim's participation in the argument was loud, it was mainly defensive. In order for an argument to mandate a charge of voluntary manslaughter, it must be of such a nature to excite "a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person . . ." Code Ann. 26-1102. Thus, the evidence in the case did not require a charge of voluntary manslaughter. Driggers v. State, 244 Ga. 160 (259 SE2d 133) (1979); Lowe v. State, 240 Ga. 767 (242 SE2d 582) (1978). Further, in the absence of a written request for a charge, it is not error for a court to fail to charge on voluntary manslaughter. Driggers v. State, supra; Bouttry v. State, 242 Ga. 60 (247 SE2d 859) (1978); Jackson v. State, 239 Ga. 40 (235 SE2d 477) (1977); State v. Stonaker, 236 Ga. 1 (222 SE2d 354), cert. denied, 429 U. S. 833 (1976). Inasmuch as neither the defendant nor the state presented the court with a written request to charge on voluntary manslaughter, and inasmuch as there was no evidence which would have mandated such a charge even if a request had been made, there was no error in the court's failure to charge on voluntary manslaughter. Appellant's second enumeration of error is without merit.
4. Appellant also argues that the court's refusal to grant him a psychiatric examination constituted error. The court is under no duty to grant a psychiatric examination in the absence of a special plea of insanity. Lewis v. State, 239 Ga. 732 (238 SE2d 892) (1977); Watkins v. State, 237 Ga. 678 (229 SE2d 465) (1976); Holsey v. State, 235 Ga. 270 (219 SE2d 374) (1975); Taylor v. State, 229 Ga. 536 (192 SE2d 249) (1972). Testimony on the part of appellant's counsel that appellant had difficulty "understanding different phases of the law" is not sufficient to establish that appellant was incompetent to stand trial. The trial judge, having observed the defendant at the bench trial of the aggravated assault case and during the lengthy discussion which he had with the defendant in regard to a possible plea to the murder charge, ruled that the defendant was, in his opinion, entirely rational and that he knew exactly what he was doing. Inasmuch as there was no special plea of insanity and inasmuch as the trial judge had observed the defendant's behavior and made his own determination that no psychiatric evaluation was necessary, appellant's third enumeration of error is without merit.
"Where an incorrect charge has been called to the jury's attention, and withdrawn from them, and a correct charge given, there is no merit in an assignment of error complaining of the incorrect charge." Foster v. State, 230 Ga. 870, 871 (199 SE2d 790) (1973). See also, Shurley v. State, 210 Ga. 136 (2) (78 SE2d 27) (1953); Fraley v. State, 120 Ga. App. 427 (170 SE2d 729) (1969).
6. Finally, appellant enumerates as error the court's refusal to grant a mistrial following the prosecutor's questioning of a witness as to the origin of the quarrel between appellant and the victim. The witness testified that she first heard about the argument when appellant's father and two brothers came to her home with guns and engaged in a conversation with her regarding the quarrel. "A trial court does not err in admitting evidence of a previous difficulty between a defendant and victim which illustrates the state of feeling between them." White v. State, 242 Ga. 21, 22 (247 SE2d 759) (1978). The conversation containing facts to ascertain motive is relevant and admissible under Code Ann. 38-302. Moore v. State, 240 Ga. 807, 816 (243 SE2d 1) (1978).
The court having found the enumerations of appellant to be without merit, the conviction of appellant for murder is affirmed. Appellant's appeal from his conviction for aggravated assault is dismissed, this court having determined that it has no jurisdiction over the matter.
Lewis R. Slaton, District Attorney, Margaret V. Lines, Assistant District Attorney, Arthur K. Bolton, Attorney General, Nicholas G. Dumich, Staff Assistant Attorney General, for appellee.
Thurbert E. Baker, for appellant.
SUBMITTED MARCH 21, 1980 -- DECIDED JULY 1, 1980.
Friday May 22 01:44 EDT


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