Dеfendant Grimes was charged by indictment with the offense of murder. Upon the trial of the case, a jury returned a verdict of guilty of involuntаry manslaughter (in the commission of an unlawful act). Defendant appeals his conviction of involuntary manslaughter (in the commissiоn of an unlawful act). Held:
1. Defendant’s second enumeration of error raises the sufficiency of the evidence to authоrize his conviction for involuntary manslaughter (in the commission of an unlawful act). The evidence construed most strongly in favor of the verdict, is as follows: The victim, defendant’s female friend, and defendant were alone at defendant’s apartment when the victim was fatally wounded by a single gunshot to her head. Defendant admitted that the shot was fired by his pistol and that he had pulled the trigger cаusing the pistol to fire.
Relying upon the defense of accident, defendant testified that he was walking across the room to put the pistol away when he tripped and the pistol fired. Defendant conceded that as he fell he put pressure on the trigger causing the pistol to fire. However, defendant’s testimony regarding the manner in which the pistol was caused to fire was cоntradicted by defendant’s prior statements.
One of the first two police officers at the scene was told that defendant аnd the victim were playing on the bed, where the victim was found when police arrived, and that the victim had rolled over on th« pistоl and it had gone off. When the officer noticed blood on a chai» in the adjoining living room and directed defendant’s attentiоn tel this, defendant stated that he and the victim had been wrestling around the living room and that the pistol had gone off there. ThS second officer was told by defendant that the pistol discharged wheil he dropped it on the bed. When the third officer arriving at the seen® overheard defendant repeating this version of his story and asked! “Did he say it went off when it hit the bed?” defendant responded! “Well, it really didn’t fall on the bed, it actually hit her in the heal and fell on the bed after it went off.” In a subsequent statement to I homicide deteсtive, defendant stated that the pistol fired when hi tripped over a chair. I
At the hospital, where the victim’s family had gathered аs she lal in a coma from which she never recovered, defendant spoke to thl victim’s mother and told her that “he slipped over the sterel dropped the gun, the gun went off, . . .” In a separate conversatiol *153 with the victim’s father, defendant stated thаt he stumbled, the pistol fell, hit the floor, went off, the bullet ricocheted off the bathroom wall and came back and hit the victim. Dеfendant told the victim’s brother that he tripped over a coffee table and was falling when the pistol went off.
“It is well established that ‘the essential elements of the crime of involuntary manslaughter in the commission of an unlawful act are, Irst, intent to commit thе unlawful act; and secondly, the killing of a luman being without having so intended but as the
proximate result
of such intended unlawful act,’ (Emphasis supplied.)
Passley v. State,
We cannot agree. The defendant having admitted firing the pistol, the jury could consider defendant’s myriad of conflicting explаnations as to the circumstances which precipitated the discharge of the pistol, determine that defendant was successfully impeached, and reject defendant’s testimony that the firing of the pistol was not deliberate. The deliberate firing of the pistol in the confines of the apartment could be viewed by the jury as a violation of OCGA § 16-5-60 (b) prohibiting reckless conduct.
As the evidence would authorize a finding that defendant unintentionally killed the victim in the commission of a misdemeanor offense of rеckless conduct, a finding of guilt of involuntary manslaughter (in the commission of an unlawful act) was authorized.
Truitt v. State,
2. After they had retired to deliberate, the jury sent out the fol-owing written question: “May we be given a definition of the possible 'erdicts again and may wе write these definitions down?” The trial :ourt then recharged on murder, malice, felony murder, simple as-ault, aggravated assault, involuntаry manslaughter in the commis-ion of an unlawful act, reckless conduct, and involuntary manslaughter in the commission of a lawful act in аn unlawful manner. The trial ourt did not recharge as to the verdict of not guilty or the defense of ccident.
Defendant contends thаt the trial court erred in not including in pe recharge a verdict of not guilty and the principle of legal accident [pon which defendant relied. “Responding to a jury’s request to re
*154
state portions of the charge is generally required of the trial judgе, see
Edwards v. State,
Following a second inquiry from the jury, the trial court elected to respond by having an excerpt from the charge prepared setting forth that portion defining the various offenses of which defendant could be convicted. Over defendant’s objection to the procedure, each juror was given a copy of the written excerpt from the charge tо take into the jury room. The accepted practice in Georgia (except where required by statute as in OCGA § 17-10-30 (c)) is nоt to allow jurors to take written instructions with them into the jury room.
Gholston v. Gholston,
3. Defendant’s remaining enumerations of error, being unlikely b recur upon a retrial, need not be addressed.
Judgment reversed.