Ballard v. StateBallard v. State
- Reporters:
- , ,
- Before:
- Carley
Ballard was indicted for murder for shooting Thomas Moore with a rifle, “thereby giving to him mortal wounds, of which . . . [he] then and there died.” Represented by counsel, Ballard appeared in court, pled guilty to voluntary manslaughter and was sentenced to five years in the penitentiary. Thereafter, he filed in the trial court a
1. The transcript of the guilty plea hearing shows that Ballard responded to questions before the court that he understood the proceedings, that his attorney had explained them, that he understood he had a right to a trial by jury and a jury was at that time waiting outside the courtroom, that his plea of guilty to voluntary manslaughter was freely and voluntarily given and that he knew the joint recommendation of his attorney and the state of a five-year sentence was not binding on the court. He further indicated that he had sufficient opportunity to discuss his case with his attorney, that he was advised of his legal and constitutional rights and that his attorney told him the consequences of a guilty plea. His attorney testified that he had advised Ballard of his legal and constitutional rights to the best of his ability. Contentions that Ballard was not advised of his rights and was coerced into pleading guilty are not supported by this evidence.
2. It appears from the facts recited in the transcript that Ballard had told the victim to stay away from his house. One morning he saw the deceased coming in and told him, “I thought I told you to stay out of my house.” After warning two other occupants of the house to be quiet, Ballard got his rifle and shot the deceased. Ballard
Ballard’s argument that under these circumstances he should have been charged with involuntary manslaughter (Criminal Code § 26-1103) rather than voluntary manslaughter (Criminal Code § 26-1102) is without merit. The only grade of involuntary manslaughter possible under these facts is that defined by Code Ann. § 26-1103 (a), causing “the death of another without any intention to do so, by the commission of an unlawful act other than a felony.” But here there was an aggravated assault with a deadly weapon, which is a felony (Code Ann. § 26-1302 (b)), and precludes its application. Chappell v. State, 134 Ga. App. 375 (1) (214 SE2d 392) (1975). Since ” ‘the homicide was neither accidental nor malicious it was intentional, and therefore was voluntary manslaughter.’ [Cit.]” Cochran v. State, 146 Ga. App. 414, 415 (2) (246 SE2d 431) (1978).
3. Henderson v. Morgan, 426 U. S. 637, 647, supra, was “unique because the trial judge found as a fact that the element of intent was not explained . . .’’to the defendant, who pled guilty to second degree murder. Under the New York statute the intent to cause the death of the victim was an element of that offense, and a splintered court held that the defendant did not receive adequate notice of the offense to which he pled guilty. This decision does not require the trial judge accepting a guilty plea to personally instruct the defendant of the elements of the crime, and we know of none that does. See Camp v. State, 147 Ga. App. 114, 115 (2) (248 SE2d 286) (1978). In the instant case both Ballard and his attorney agreed that the nature of the charge against him had been explained, and this was sufficient. Henderson v. Morgan, supra, at 647.
4. “[A]fter the pronouncement of sentence a motion to withdraw a plea of guilty addresses itself to the sound discretion of the trial court, and this discretion will not be disturbed unless manifestly abused. [Cit.]” Conlogue v. State, 243 Ga. 141 (1) (253 SE2d 168) (1979). We find no such abuse here.
Judgment affirmed.
Deen, C. J., and Quillian, P. J.,