Bangs v. StateBangs v. State
- Reporters:
- , ,
- Before:
- Carley
Although appellant was indicted for murder, he was tried before a jury and found guilty of voluntary manslaughter. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.
1. The trial court’s giving of a charge on mutual combat is enumerated as error.
“ ‘Mutual combat. . . generally involves deadly weapons and the mutual intention of using them. [Cit.]’ [Cit.] A mutual combat situation arises when ‘both parties are at fault and are willing to fight because of a sudden quarrel.’ [Cit.] The mutual intention to fight need not be proved directly, but may be inferred by the jury from the conduct of the parties. [Cits.]” Simmons v. State, 172 Ga. App. 695, 696 (1) (324 SE2d 546) (1984). The evidence in the instant case showed that appellant and the victim exchanged words in a bar. According to appellant, he believed that he had offended the victim. When the victim left the bar, appellant immediately followed and approached the victim. A struggle ensued, during which appellant was cut with a knife and the victim was shot with appellant’s gun. “ ‘It is well established that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. (Cit.)’ [Cit.] The evidence necessary to justify a jury charge need only be enough to enable one to carry on a legitimate process of reasoning. [Cits.] While it is true that mutual combat and self-defense are mutually exclusive by definition, where there is evidence of both the jury, as trier of fact, *405 must select between the two propositions. [Cits.]” Simmons v. State, supra at 696 (1). “Hence, it was not error to give these charges.” Shy v. State, 190 Ga. App. 370, 372 (5) (378 SE2d 920) (1989).
2. The trial court’s refusal to give appellant’s requested charge on involuntary manslaughter is enumerated as error.
At trial, appellant relied upon the theory of accidental discharge of his gun while defending himself against the victim. Contrary to appellant’s contention, his testimony that the weapon was accidentally discharged during the struggle “did not require a charge on unlawful act-involuntary manslaughter. [Cit.]”
Buie v. State,
254 Ga. 167, 168 (2) (326 SE2d 458) (1985). See also
Bright v. State,
191 Ga. App. 655, 658 (7) (382 SE2d 426) (1989). Under the evidence, appellant either shot the victim intentionally — in which case he was either guilty of murder or voluntary manslaughter or not guilty by reason of lawful self-defense — or he shot the victim unintentionally while acting in lawful self-defense — in which case he was not guilty of any criminal homicide by reason of accident. There is
no
evidence that appellant
unintentionally
shot the victim by commission of an
unlawful act
other than a felony so as to be guilty of involuntary manslaughter under
Appellant further urges that, having charged the jury on self-defense, the trial court should also have given a requested instruction on involuntary manslaughter in the performance of a lawful act in an unlawful manner, that is, self-defense with excessive force through use of a gun. This contention has been rejected by the Supreme Court. “The appellant argues that the use of excessive force in self-defense constitutes the commission of a ‘lawful act in an unlawful manner,’ within the meaning of [OCGA]
Judgment affirmed.
Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Pope, Beasley, Cooper and Andrews, JJ., concur.