*1 knowledge possession well as the soon was defense as as it statute is provides that attorney. OCGA 17-7-211 district from evidence. We report complied not must excluded 10-day requirement compliance have held that with the where a reasona- within possible, “the is entitled to document defendant or recess as the trial a continuance ble time and be entitled to attorney fails alto- Only prosecuting determine. where the judge shall apply.” exclusionary rule gether to furnish the document does the 904) (1983). (307 present State, In the Law v. 251 Ga. SE2d earliest report prosecution at the case the was made available continuance; possible under these time defense was offered a and the circumstances we find no error. taking of the also no merit the contention that find her sample privilege homicide violated
blood State, SE2d against Welch self-incrimination. See 573) (1985). appellant
4. In her of error the contends third enumeration statements to trial court was in error in its determination her intoxi- police voluntarily made she was too freely consumption rights. cated to her The level of alcohol knowingly waive in which examining is a factor to be circumstances considered given. statement See Pittman v. respon- testimony Carey There coherent and that Ms. was during
sive both authorize the trial interviews. The record here would voluntarily finding appellant court’s knew re- rights her them; linquished upheld court will be findings trial appellate Berry v. clearly court unless erroneous.
Judgment All the Justices concur. affirmed.
Decided June Wollstein, appellant.
Harold N. Lanier, F. Stephen Attorney, Simpson, Fred R. Assis- District General, Bowers, Attorney, Attorney tant District Michael J. J. Davis, General, appellee. Michael Attorney Assistant
44313. BISHOP v. THE STATE.
(356 SE2d Justice. Gregory, C. murder
Robert was convicted malice and sentenced imprisonment.1 to life We affirm. park lived in a County. trailer Coweta Because he was trailer,
concerned past about break-ins to his erected a or trap gun. positioned 8mm rifle on high-powered Mauser two chairs with the barrel in the direction of the trailer’s front A door. string attached to the door knob ran over the back one *2 the chairs and was connected to the trigger.
Bishop 13, went work February to on the of the spring gun place. Later, Freeman, acquaintance James an of Bishop, attempted to enter the front door the trailer. The rifle dis- charged and hit molding the metal at the foot the door. Freeman by was hit either piece or ricocheting fragment flying bullet Neighbors metal. heard the lying shot and found Freeman wounded in Bishop’s driveway. dark, The neighbors said the trailer was but that Bishop’s car driveway. was the
Freeman was hospital. duty taken to a Newnan on The doctor projectile the found off glanced right thigh Freeman’s and frac- tured his forearm. Freeman was hospital, transferred to Atlanta performed where doctors transplants tissue and vascular on the arm using grafts from leg. Freeman’s left
Freeman was hospital released from the two weeks later. The fol- 27, 1986, lowing night, February on pathologist perform- he died. The autopsy said Freeman died of a embolism or blood clot.
Bishop by jury was tried guilty and found of malice murder. Bishop 1. first contends the trial erred in his mo- tion for directed verdict State did not establish all the essential particular, Bishop elements of malice In murder. claims the prove State did reasonable doubt acted with malice aforethought, express implied. either positioned contends the evidence demonstrated he point door, directly rifle to to the floor of the front and not door opening with the to He contends intent shoot whoever entered. manner, erecting only if as scare burglars, express entering he had neither kill malice to someone door, any implied nor rising malice from the circumstances of the killing.
The exclusively State Bishop’s theory contends rests on fact the bullet jamb hit the of the and not door the base door directly. posi- Freeman The argues concerning State the evidence 1 Bishop 27, February 13, February was arrested on died 1986. 1986. victim on 16, guilty jury imprisonment September was found life on sentenced to 27, January transcript January 1986. The was on certified on docketed this court orally argued April 1987. The was case tioning gun to show can be construed to the door relation shooting en- whoever intent of with the in fact aimed the tered. was high-pow- undisputed theory accepted, that a it is Whichever positioned di- the barrel on chairs with ered rifle by opening triggered Even the door. be rection of the door to Bishop’s present accepted nonetheless would true, situation as version is jury question disre- was such reckless the act as whether specific equivalent gard “A intent to kill. life as of human equivalent aof mind is sometimes the reckless state of wanton and kill, mind be treated state of intent to and such jury amounting wilful and intentional intention when the performance productive in the de- of violence an act Myrick State, struction of human life.” 36) (1945). shooting Myrick vic- defendant admitted note that yards. The defendant tim with a rifle fired from a distance trespassing to a the rifle a foot claimed foot and a half when he aimed the victim was none- him. This court the victim’s head scare over question jury was such as to whether the act theless found a existed *3 equivalent disregard for human life as to be the reckless intent cepted ac- kill version the facts to even the defendant’s 407)- Carrigan v. true. See also (1950), pistol un- he his to be where the defendant claimed believed pulled directly it the victim’s head and loaded when he trigger. denying for di not in the motion
We find the trial court did err viewing light since, rected most favorable verdict the evidence prosecution, found the essen to the trier of fact could have rational beyond Wright v. tial elements of a crime a reasonable doubt. (1) (316 Virginia, S. 443 U. Jackson SC 61 LE2d Bishop erecting spring in was not unlawful also contends killing justified. cites his case because the Freeman was He OCGA threatening provides: person justified § 16-3-23, in or us- which “A is reasonably against he force another when and to the extent that necessary prevent or termi- believes that such a threat or force is to entry upon habitation; nate however, or attack such other’s unlawful into likely justified in or he is the use of force which is intended (2) reasonably bodily only great . harm if: . . to cause death or believes that the mitting attempted purpose entry for com- is made or necessary prevent felony such force is to therein and felony.” commission
Apparently Bishop’s occa- trailer had been broken into several According Bishop, Freeman was bur- sions. the evidence indicates glarizing disputes although shot, the trailer when he was the State Bishop argues this. had he been at home the darkened trailer and attempted reasonably Freeman to enter he unannounced could have felony being upon believed a committed his habitation and been justified using deadly pursuant force 16-3-23. Bishop’s argument working weakness is that he was Bishop
not at home when the activated. contends the person jurisdictions traditional rule observed in other is that a is not justified taking indirectly a life with a mechanical device unless he justified present personally would have been been taken the life with his own hand. Bishop’s adopt
We decline invitation to cir- such rule these justifies deadly cumstances. Section 16-3-23 a habitation the use of force to only “reasonably entry when the inhabitant believes” the purpose committing felony. is made for the We find that under impossible circumstances, however, these it was form light “Allowing reasonable belief in of his absence from the trailer. persons, deadly employ risk, at their own devices im- mechanical perils policemen acting children, the lives of firemen and within the scope employment, present, of their is others. Where actor always possibility deadly there is he will realize that not necessary, deadly mercy but mechanical devices are without or discre- tion. ... It seems clear that the use of such devices should be encouraged. ing thought forego- Moreover, torts, whatever setting exception liability injuries
rule forth an death inappropriate penal inflicted devices ‘is for it obvi- law prescribe liability conduct; ous it does not a workable standard of de- ” pends upon People Rptr. Ceballos, fortuitous results.’ 116 Cal. 244-245) (Cal. 1974), quoting P2d Code Model Penal (Tent. 8), § 3.06, Draft No. comment 15. also contends the trial court his mo- erred tion for directed verdict because the State did not a di- demonstrate rect causal connection between the act and the death rea- sonable doubt. He contends embolism or blood clot was too remote in time from the from
killing, that the embolism could have resulted from factors other than the gunshot wounds.
Pathologist Fred Gilbert testified at trial that Freeman’s death by pulmonary was caused lungs. a embolism between Freeman’s heart and origin Dr. Gilbert said the of the was the area Freeman’s clot leg repair grafts left from which bone and skin taken to his arm. usually develop Dr. Gilbert testified that ex- embolisms lower by hospitalization. brought surgery tremities and can patients said when are immobilized with wounds the extremities stagnant, bones, fractured loose. the blood can become clot and break 140 sur- wound and gunshot that without opinion Dr.
It was Gilbert’s devel- have case, unlikely blood clot would it was gery in Freeman’s oped. room, emergency Powell, treated Freeman
Dr. Jack who entered threatening not life said Freeman’s wound wounds, clots pulmonary said with such emergency But Powell room. embolisms always danger. Dr. Freeman also testified are causes, variety of can have a wide killed Freeman such as the one that trip or sit- stationary activity, taking such as by and can be caused ting at a desk. unlikely are to occur pulmonary embolisms
Both doctors stated precipitating some outside age in a man of Freeman’s of 36 without cause. proxi- is the injury, injury an
“Where one inflicts
unlawful
materially
‘directly
contributed
injury
mate cause
accruing immediate cause
happening
subsequent
to the
”
365) (1981),
State,
v.
(1) (278
SE2d
death.’ Larkin
3. We have reviewed all the evidence ginia, 560) (1979), and find U. S. SC 61 LE2d of fact light jury’s most favorable to the verdict that a rational trier could have doubt. guilty found a reasonable concur, Smith, J., Judgment except All the Justices affirmed. who dissents. Justice, dissenting.
Smith, “Every man’s home is his castle.” This statement all of us have heard since childhood. This case involves the extent to which man deadly use force that “castle.” Rennison, (K.B. Collins Sayer
In the venerable case 1754), English employing describéd allowable extent phrase phrase imposuit.” “moliter indi- manus use cated a person gently push non-felonious intruder out should Blackstone, response the door. to intrusions advocating tougher home, punishable into the death. He noted that all felonies were deadly prevent advocated sanction an intruder use felony. from Commenta- entering home commit a Blackstone’s
141 ries 188. Ilott v. In 1820, scene. “spring gun”
In case came on the the first (K.B. 1820), the de- Wilkes, 674 Eng.Rep. & Aid. 106 3 Barn. property. gun The in woods on his up spring gun fendant set some King’s Bench trespasser. The Court of planned, injuring worked as emerged when evidence entered a non-suit favor of the defendant showing plaintiff spring gun. had notice of the Holbrook, 4 911 Bing. Eng.Rep.
In Bird v. 130 the case of (C.P. Ilott 1828), case similar to the Court of Common Pleas heard a searching while plaintiff injured by spring gun in which the Ilott, however, Bird, In unlike neighbor’s garden for his fowl. opinion In of Chief Jus- plaintiff spring gun. had no notice of the decision, Best, lack of notice tice in the Ilott part who had taken cases, plaintiff was entitled to a verdict. distinguished the two and the cases, subject In early spring gun arguably these owner was damages, charge. civil much less a murder or assault time, spring gun
Around this Parliament became involved debate, spring guns. use of passing a statute which criminalized the (1827). however, did, exception & 8 Geo. Parliament create c.18 in the home for dusk and dawn allowing guns the use between Burns, to Pro- felony. Id.; Privilege & The prevention of a Bohlen Devices, Yale Property by Dangerous tect Barriers and Mechanical (1926). L.J., 525, 541 n.46 in Ken- appeared States spring gun
The first case the United Combs, Kentucky tucky Gray Ky. cases hold- approved disapproved English of the earlier neither nor circum- property justified use under the Patterson, (1940), Supreme In 14 Conn. stances. Johnson sanc- spring guns the use of rejected Court of Connecticut dicta in Gray. tioned country cases, in this early legislatures
Since the the courts and have, in a line between complete prohibition, the absence of drawn Some spring guns spring guns in the home and used elsewhere. used protect dwelling guns cases have stated that could be used spring pre- deadly force had he been places when the could have used owner 1984). (5th Torts, Others like p. sent. See 136 n.40 ed. Prosser on here, spring guns. majority opinion flatly forbid the use spring guns and dealing standards range From the broad law, a homicide justified I rule that views as criminal would select the the defendant committed the home of spring totality of the circumstances under the defendant can establish would be that someone possessed expectation that he a reasonable was, the victim felony and that breaking into his home to commit a this, we indeed, felony. To do to commit a breaking into his home time that simply should look to the intent of the defendant leading to the chain of events spring gun, setting sets the motion, is shot. Viewed than to the time at which the victim rather such as manner, justify a homicide OCGA 16-3-23 would in this I would reverse. one involved case. 4, 1987.
Decided June *6 Kam, Word, Farmer, Rosenzweig, Flinn, P. Word & Gerald MacNabb, MacNabb, appellant. for Joseph & P. Jones As- Attorney, Coggin, K. Mallory III, Randall Arthur E. District General, Bowers, Attorney J. Attorney, sistant District Michael J. General, Davis, Attorney appellee. for Michael Assistant STREET, PEACHTREE INC. 44318. ILLUSIONS ON v. YOUNG et al.
(356 SE2d Clarke, Presiding Justice. Superior County
Appellants appeal from an order of Fulton petition The action arose Court their for mandamus. of Mayor Young appellants’ application for a transfer denied Andrew occupied for liquor from a which their business license location applica- years denied the Mayor Young several to another location. by appellants, provided tion on entertainment grounds that under impersonation, which female was adult entertainment includes 16-29.001(e) Ordinances, pro- Code and would be of the Atlanta of § 14-2002 of he cited ground hibited use. As a second his decision § Ordinances, general purpose the Atlanta Code of which sets forth dealing alcoholic Chapter of 2 of the Code of Ordinances Atlanta plan to beverages. part chapter This section indicates that community and lists promote the health general welfare implementation guide factors which serve as a 14-2002, mayor, set out considering ordinance. the factors § sur- effect found that would have a detrimental licensing school, be- rounding proximity close neighborhood because conditions, cause of of the residential character traffic and because mandamus, neighborhood. petition The trial denied right relief. affirm. finding appellants legal had no clear they Appellants entitled to mandamus insist that are 14- They claim they met license. requirements all of for a Further, they ar- unconstitutionally vague 2002 is unenforceable. succeeding merely preamble sections gue the section Medi- Bentley Board law, v. State citing does not have the Examiners, Eastman cal SE