140 Ga. App. 890 | Ga. Ct. App. | 1977
The appellant, M. M. Davis, was charged with the offense of murder and convicted of voluntary manslaughter. He appealed enumerating as error the insufficiency of the evidence to convict or authorize a charge on voluntary manslaughter and other grounds. Held:
2. The following charge was given: "The law presumes that a person intends to accomplish the natural and probable consequences of his acts and if a person uses a deadly weapon or instrumentality in the manner in which such a weapon or instrumentality is ordinarily employed to produce death, and thereby causes the death of a human being, the law presumes the intent to kill.” The charge is enumerated as error on the grounds that it impermissibly shifts the burden of proving an element of the state’s case to the defendant, forcing the defendant to adduce proof of his innocence; and it violated the due process of law clause of the Fourteenth Amendment of the United States Constitution, "which requires that the prosecution must prove beyond a reasonable doubt every factor necessary to constitute the crime charged.”
The charge was a correct charge of the law. Delk v. State, 135 Ga. 312 (3) (69 SE 541); McLeod v. State, 128 Ga. 17 (4) (57 SE 83). The charge was a statement of the law as to a presumption arising from proof of certain facts, and placed no burden upon the defendant to disprove the
Nor did the state’s evidence show mitigating circumstances, justification, or alleviation, as was true in Jordan v. State, 232 Ga. 749 (5) (208 SE2d 840) involving a charge on a presumption of murder or a presumption of malice under certain circumstances and where the state’s evidence was sufficient to show either that the homicide was justified or that the accused was guilty of only voluntary manslaughter. In the present case the charge on the presumption as to intent under certain circumstances was a charge applicable alike to murder and voluntary manslaughter, as an intent is necessary in both. See in this connection Henson v. Scoggins, 203 Ga. 540, 541 (4) (47 SE2d 643); Mixon v. State, 7 Ga. App. 805 (4) (68 SE 315). There was no state’s evidence of justification or as to involuntary manslaughter, in which latter instance intent would not be a factor.
3. After the jury went into the jury room, a message was sent to the trial judge regarding a recharge. The trial judge addressed the following remark to the jury and recharged accordingly: "I assume — from your inquiry that what you desire from the court is further definition or a definition respecting murder and manslaughter. I assume that is what you want. I therefore charge you in that regard.” The trial judge then stated, "I instruct you that in giving you those instructions, you shall bear in mind each and every other instruction heretofore given you respecting justification and self defense in this case and that regard — I have one other charge I think I should submit to you.” He then gave another charge on self-defense. Immediately thereafter the trial judge again stated to the jury "you shall bear in mind and you shall consider each and every charge that the court gave you in its principal charge on the question of reasonable doubt and on other theories on the law which the court submitted to you.” Error is enumerated because the trial
4. A witness for the state was being cross examined by the counsel for defendant as to her feelings about the defendant, and the following occurred: "Mike [defendant] tells a whole bunch of lies — Question: So that is the way you were feeling before the night of the shooting? Witness: I had been felt like that way back there last year when he first got out of jail.” Error is enumerated on the grounds that this statement placed the defendant’s character in issue and was unresponsive to the question. No objection having been made in the court below, or request for any action by the trial judge thereon, no question is presented for review in this court. See Phillips v. State, 108 Ga. App. 540 (1) (133 SE2d 708).
Judgment affirmed.