Defendant was indicted for murder. He was tried and found guilty of the lesser offense of involuntary manslaughter in the commission of an unlawful act. He was then sentenced to serve a term of five years. A motion for new trial was filed and denied, and defendant appeals. Held:
1. Defendant and the victim, his wife, were in the process of getting a divorce. They lived in a trailer in the rear of a home owned by the defendant’s mother. They were separated, and the defendant had moved in with his mother. There was a family confrontation in the mother’s home on the occasion in which the victim was shot and killed. Evidence was offered to infer that both the victim and the defendant were in the process of obtaining custody for themselves of their minor child, and each had accused the other of infidelity. During the evening, shortly before the shooting, defendant obtained possession of a pistol which he had in his hand which subsequently discharged striking the deceased (his wife). In arguing the еnumeration of error that the verdict is contrary to evidence and law, and the evidence is insufficient to support a conviction of involuntary manslaughter in the commission of an unlawful act, defendant contends that his sole defense was that of accident, hence the jury having found him not guilty of murder, the only effеct was that the shooting arose out of an accident. He contends he could not be guilty of involuntary manslaughter in the commission of an unlawful act. However, the evidence was somewhat conflicting as to how the weapon discharged. While the jury might have determined that it was an accident when the pistоl discharged and struck the deceased, nevertheless there was evidence from which the jury could believe that the defendant intentionally and without legаl justification pointed the pistol at the deceased (his wife) which is a misdemeanor. The weight and credibility of the evidence was for the jury, and it is appаrent that the jury chose to believe that the defendant did not intend to kill his wife when he shot her, but that he
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did intentionally point the pistol at his wife without any legal justificatiоn for same. The evidence was sufficient to support the verdict.
Kerbo v. State,
2. At the conclusion of the presentation of the evidence and prior to argument, the district attorney filed a motion styled "motion in limine” in which he asserted that the defendant had been served with a list of 21 witnesses and a supplemental list of two witnеsses; that 16 witnesses were subpoenaed by the state and 11 were actually used in the trial. The motion sought to prohibit counsel for defendant from referring in argument to the fact that the state had failed to produce any or all of its witnesses for trial based upon the authority of
Gannaway v. State,
3. The jury returned on at least two occasions to request the court to give further instructions. The jury foreman asked the court the following question: "Does criminal negligence apply to manslaughter and to murder, involuntary manslaughter?” Whereupon the trial court instructed the jury and the foreman that "it would not be appropriate for the Court to answer specifiс questions that are posed by the jury to the Court.” The trial judge instructed them that having given them the specific definition of murder as it appears in the Code which is thе law and the specific definitions of the two degrees of involuntary manslaughter that were originally charged he could only tell the jury that they must apply the facts and the evidence that came before them from the witness stand, then determine whether or not the offense of murder had been proved beyond а reasonable doubt or if it had not, whether either of these degrees of involuntary manslaughter had been proved beyond a reasonable doubt, and if none of these offenses had been proved beyond a reasonable doubt then their verdict in that event would be a verdict of acquittal or not guilty. The instructions as given and the refusal of the trial court to answer a specific question were proper and sufficient, and even though the trial court refused tо answer the specific question he properly recharged as to criminal negligence, the definitions of murder and the two degrees of involuntary manslaughter, all of which had been previously charged in the court’s main charge. In giving a recharge requested by the jury the court is not bound to repeat all of the law of the case or all of the law favorable to the defendant.
See Demps v. State,
4. The next error enumerated is that the trial сourt erred in failing to instruct the jury on all the applicable law pertaining to the offense of involuntary manslaughter in the commission of an unlawful act. Defendant contends that the court failed to inform the jury of the particular lawful or unlawful acts which the accused was alleged to have committed which caused the death of the deceased. But the court did charge the jury that it was a violation of the law to intentionally point a pistol at another. The defendant had testified that the pistol discharged, as he contended, accidentally. Of necessity the pistol was pointed at the deceased when she was killed by the bullet fired from that pistol. Defendant contends that the trial court having charged on a lesser crime than that charged in the indictment under
State v. Stonaker,
Judgment affirmed.