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WARE v. THE STATE.
38166.
CARLISLE, Judge.
Voluntary manslaughter. Haralson Superior Court. Before Judge Foster. November 25, 1959.
1. There being evidence from which the jury would have been authorized to find that the defendant did not intend to kill the deceased, and that the killing was the result of culpable neglect on the part of the defendant in that ice carelessly handled a loaded rifle which he knew was easy to discharge, and that such careless handling resulted in the death of the deceased, such evidence would have authorized a finding that the defendant was guilty of involuntary manslaughter in the commission of a lawful act without due caution and circumspection, and the trial court erred, therefore, in failing to charge the jury even without request the law on involuntary manslaughter as embodied in Code 26-1009 and 26-1010, as complained of in special ground 1 of the motion for a new trial. Warnack v. State, 3 Ga. App. 590, 595 (2) (60 S. E. 288); Lee v. State, 70 Ga. App. 61 (27 S. E. 2d 347); Wager v. State, 74 Ga. App. 729, 731 (41 S. E. 2d 342).
2. Special ground 2 complaining of the portion of the charge on justifiable homicide on the ground that the court did not in immediate connection therewith instruct the jury that if they found that the homicide was justifiable they should acquit the defendant does not present any question for decision by this court. It has been repeatedly held that a correct charge is not rendered erroneous by the failure to give in connection therewith some other pertinent and applicable legal proposition. Burton & Class v. Connell, 84 Ga. App. 106, 109 (2) (65 S. E. 2d 620); City of Decatur v. Robertson, 85 Ga. App. 747, 750 (3) (70 S. E. 2d 135); Walker v. State, 199 Ga. 418, 424 (1) (34 S.E.2d 446).
3. The instruction given by the court which submitted to the jury the issue that the defendant killed the deceased in order to protect his mother submitted to the jury a contention was not made by the defendant, and it was, therefore, confusing and misleading to the jury and harmful to the defendant. Key v. State, 21 Ga. App. 300 (2), 305 (94 S. E. 283); Burley v. State, 158 Ga. 849 (1a) (124 S. E. 532).
4. Inasmuch as the case is to be tried again and the evidence on another trial may not be the same, the general grounds of the motion for a new trial are not passed on.
J. W. Ware was indicted in the Superior Court of Haralson County for murder. On the trial, the evidence showed substantially the following facts: On the day of the killing, the deceased engaged in an altercation with the defendant's mother at the house of a neighbor some three or four doors removed from where the defendant and his mother lived. In the course thereof the deceased inflicted a beating, or committed an assault and battery on the defendant's mother, knocking her off a porch to the ground some two and one-half feet below, and she was so injured that it was necessary for her daughter and one of her neighbors to assist her in returning home. When she arrived at her house she was met by the defendant whom she informed of what had occurred. The defendant, after assisting his mother into the house, procured his rifle and went to the house where the altercation had occurred and where the deceased was visiting, arriving there some 15 minutes or so after his mother had left. The sole eyewitness to the shooting testified that he first saw the defendant coming down a trail behind the houses and that he was carrying the rifle with one hand down by his side; that the deceased had gone around in the side yard near the front of the house and was chopping wood; that the defendant went around the side of the house to where the deceased was; that he (the witness) went through the house and when he got to the front the defendant was standing on a bank with the rifle sticking under his arm; that the deceased threw down his ax and "ran up" on the defendant, the defendant shoved him back with his left hand and the rifle went off, the bullet striking the deceased in the chest and inflicting the mortal wound. This witness testified that the defendant did not aim the rifle; that he did not aim it at Willie Sears, but had it up under his arm. The defendant said in his statement that he did not intend to kill the deceased, but that the deceased slapped at the muzzle of the rifle and that it went off. The evidence also showed that the safety on the rifle was defective in that it would fire with the safety either on or off; and that the rifle would go off if jarred, that it was easy to fire, that a little jar or jolt would set it off.
The jury found the defendant guilty of voluntary manslaughter and fixed his sentence at three years. The defendant made a motion for a new trial on the general grounds and amended it by the addition of three special grounds, complaining of portions of the charge and of the failure of the court to charge without request. The court denied that motion and that judgment is assigned as error in this court.
Dan Winn, Solicitor-General, John T. Perren, Assistant Solicitor-General, contra.
Robert A. Edwards, for plaintiff in error.
DECIDED FEBRUARY 24, 1960.
Saturday May 23 00:26 EDT


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