Holloway v. McElroy

language summary in several of the As our earlier the evidence leading analyzing indicates, cases Armstrong pervasive 2-326 indicates § exercised consignor prevail should over a se operations. control Kress-Dobkin’s over knowledge cured creditor who has actual of Supervision intensified of Kress-Dobkin consignment.8 Thus, in Columbia Inter during period of the meat transaction Corp. national Kempler, paid 46 Wis.2d involving plaintiffs. Armstrong Moree (1970), 175 N.W.2d 465 the court stated: arrange- consignment Meat on two earlier paid ments with the cus- [R]egardless Kress-Dobkin concep- of how desirable this in- charges tom on the five loads of beef tualization consignment of a contract is whole, as a volved in this case. Taken point from the view consignor, Armstrong reasonably could infer principle apparent it violates the or shipped knew that to Kress- the meat was ownership: People ostensible should be consignment. by plaintiffs Dobkin on able to deal with a debtor the as- sumption property that all posses- in his Armstrong’s motion for Accordingly, unencumbered, sion is contrary unless the judgment N.O.V. or a new trial must be indicated their knowledge own or denied. public records. 469; accord, Bufkor, N.W.2d Inc. v. Jewelry Inc., Star (Tex. Co.. S.W.2d

Civ.App.1977). Similarly, in In Re Gross

Manufacturing Co., Importing Inc.,

F.Supp. (D.N.J.1971), the court stated:

From the comments to 2-326 of the §

Code, and scholarly commentary in area, it can be purpose seen that the HOLLOWAY, Petitioner, M. W. (3) subsection apply “ . . . cases in which creditors of the buyer may reasonably be deemed to have Clay McELROY, Respondent. E. misled the secret reservation.” Civ. A. No. 78-30-AMER. Id. at 909.9 Court, import clear United District of the comments to States 2-326, judicial Georgia, and the M. D. precedents § dis- cussed that, above Americus Division. establish where a se- cured creditor knows proceeds Aug. rightfully belong to a consignor, the con- signor must have priority. Any other con-

struction of 2-326 would § contravene the

intent of that section and would sanction

intentional goods pro- conversions of

ceeds.

Armstrong also judgment seeks

N.O.V. or a grounds new trial on the

there was support insufficient evidence to weight verdict and the of the evidence against disagree. verdict. We earlier, history 8. As noted the instant case 9. For an involves a excellent discussion of the consignment; therefore, 2-326, Annot., true Article 9 of the see rationale of 40 A.L.R.3d § inapposite. express opinion Code We no question priority or the relevance of knowledge actual of a secured creditor if this governed by case was Article 9. Roberts, Roberts,

Lawrence W. Roberts & Rainwater, Cordele, Ga., petitioner. for Gen., Bolton, Atty. K. John Arthur W. Gen., Dunsmore, Jr., Atty. Asst. State of Ga., Atlanta, Ga., respondent. for OWENS, Judge: District Holloway having Petitioner M. W. Crisp Superior in County convicted Court of voluntary manslaughter for March 1975, killing Crumbley and having of Joe his sentence had that conviction and years twenty ap- affirmed on direct both peal, (1975), 222 S.E.2d 898 collateral and state after attack habeas procedures, 241 Ga.

(1978), petitioned this court for writ of corpus, alleging habeas 28 U.S.C.A. § unconstitutionally that he was convicted be- cause there is not sufficient evidence to his support conviction charge the trial because court’s unconstitutionally the burden of shifted proving every essential element the of- prosecution—upon fense from the whom constitutionally defendant-pe- rests—to titioner. of Guilt. Sufficiency

I. of Evidence which this court The standard in a state crimi must evaluate the evidence petition nal trial to determine whether due er constitutional has been accorded recently process reformulated United in Supreme Court of the States —, Virginia,- S.Ct. Jackson U.S. Instead of 61 L.Ed.2d 560 “any not there is determining whether or conviction, support petitioner’s evidence” go satisfy the court must now further the evidence in record could itself that guilt reasonably support finding be- yond question proving every a reasonable doubt. The each and element of the question presence therefore is crime a reasonable doubt and shift- in the record but of suffi- disprov- ed to the the burden ciency of that evidence. impermis- ing guilt. Finally, sibly placed upon petitioner the burden Having carefully read the entire trial proving self-defense. transcript light standard, of this revised judgment it is this court’s considered for portions charge The critical are as by Georgia reasons well stated Court of follows: Appeals Judge Braswell Deen in his dissent- presumed charge you every person I is ing opinion, by Judges concurred in Clark discretion, but be of sound mind and Stolz, and Holloway v. presumption may be rebutted. J., (1975) (Deen, S.E.2d 898 charge person I of a you that the acts dissenting), that the evidence in this record pre- of sound mind are and discretion could not reasonably support and does not product person’s to be the sumed of the finding guilt beyond a reasonable doubt. will, presumption may but the be rebut- Judge opinion specifically incorpo- Deen’s is ted. rated into this opinion and is attached here- person A of sound and discretion mind appendix. to as an This court notes that presumed to intend the natural and evidence, only through the state’s elicited acts, probable consequences of his but the defense cross-examination of the state’s witness, may investigating agent, presumption be rebutted. G.B.I. re- intoxicated court’s dence that clusion of This fact lends support vealed that the deceased victim had a blood alcohol content of 0.12 at the time of death. version that alcohol. (R. 162). that the alcohol content considered person Ga.Code Ann. § guilt would Under and the victim came to the house gives beyond a reasonable doubt. was under the influence of rationally began was not supported by evi- judgment Georgia rise to the to a 68A-902.1(bX3). fight. lead to the con- law 0.10 blood this conviction presumption petitioner’s In this presumed prosecuted. ed with the act for which the accused is tive, and all other circumstances connect- tion of the malicious sumes every intentional homicide to be but the trier of may I charge you I # charge you find such intention until to act with criminal ^[*] words, (R. 251-52). facts, further ^[*] conduct, contrary appears and that’s the person ^[*] that the law upon demeanor, ^[*] will not be considera- intention, Jury, ^[*] pre- mo- alleviation, justifica- circumstances of therefore, It must be set aside.1 tion, mitigation, or excuse and the II. Trial Court’s Instructions. slayer whenever an burden An even compelling more defect in the proven intentional homicide has been petitioner’s conviction is found in the trial make out such circumstances to the satis- jury charge. court, court’s respon- Jury they appear faction of the unless suggested, dent has considered the trial against produced from the evidence him. charge court’s as a whole and for reasons If, however, proof, any, if there be hereinafter stated constitutionally finds it that shows the homicide itself discloses First, defective on three related bases. that the homicide done without mal- its liberal use presumptions the trial ice, presumption this that the homicide is court’s impermissibly has invaded exist, malicious if the accom- does not but the fact finding jury by function of the panying conclusively proof, any, if there be does not presuming petitioner to be guilty. Secondly, the disclose without killing instruction effective- was done ly malice, relieved the burden of then it is incumbent petitioner’s States, See, being Since the conviction is set eludes his retrial. Burks v. United insufficiency (1978); aside for sup- of the evidence to 437 U.S. 57 L.Ed.2d 1 S.Ct. port conviction, Jeopardy Massey, the Double Greene 98 S.Ct. 437 U.S. pre- Clause of the Fourteenth Amendment 57 L.Ed.2d 15

slayer to show that was done without viction affirmed the Montana Su- maliee. preme Court. On certiorari United charge you, pre- Court, this Supreme chal- States sumption against slayer which arises lenged constitutionality trial where an intentional homicide shown presumes court’s law instruction “[t]he against does not the defendant arise un- conse- person ordinary intends the less it be first shown to a moral and quences voluntary of his acts.” -U.S. certainty reasonable a rea- -, at 44. S.Ct. at 61 L.Ed.2d sonable doubt that defendant is the proper analysis of the nature slayer. appears intentional Unless it be- presumption according effect of yond a reasonable doubt to a moral “requires Court careful attention to certainty that this defend- actually words . spoken to the ant slayer, is the pre- intentional this for whether a defendant has been accorded sumption does not arise in this case and rights depends the upon his constitutional application has no to the case. way jury in which a could' have reasonable charge you I killing that when a is - interpreted the instruction.” Id. U.S. proved be to the intentional act of the defendant, at-, at at 45. presumption the S.Ct. 61 L.Ed.2d of innocence upon with he rejected argument which enters the trial is The Court the state’s removed from him and the burden is charge merely permissi- that the created upon justify mitigate him to or the homi- inference, holding jur- ble that a reasonable cide unless the evidence introduced might or well have viewed the instruction against justification him or mitiga- shows mandatory. rejected the The Court also excuse, tion or charged but you as have argument though man- that the instruction heretofore, justification the in burden to the datory merely shifted the mitigation or may excuse be found in to produce defendant to “some evidence” the against evidence introduced him. If presumption rebut he intended the that there be no evidence introduced to show ordinary consequences voluntary of his acts. justification excuse, or mitigation or jury The never court noted that if the evidence introduced shows the presumption told that the could be rebutted homicide charged committed as in the evidence, be some or even that it could Indictment, the burden would then be rebutted at all. upon the justification defendant show jury well in- could have [A] or mitigation or excuse. terpreted presumption as “conclu- (R. 253-254). (Emphasis supplied). sive," is, technically pre- that as a A. Trial instructing Court erred in that all, but as an sumption at rather irrebut- petitioner presumed is to intend table direction the court to find intent the consequences of his acts. triggering once convinced the facts On June the United States jury presumption. Alternatively, Supreme Court decided Sandstrom v. Mon may interpreted as a have instruction —tana, U.S.-, S.Ct. proof direction to find intent L.Ed.2d 39. That decision has been called (and their voluntary defendant’s actions counsel, attention of commented de- consequences), unless the “ordinary” upon by counsel and considered by this contrary by some proved fendant court in reaching its conclusion on this is may have quantum well sue. In Sandstrom, the defendant was “some” considerably greater than tried in state court murder; he admit effectively shifting the evidence—thus killing ted but victim defended on the persuasion on element burden of ground he that lacked the capacity mental intent. to have “purposely knowingly” killed - at---, her. at Id. U.S. S.Ct. nevertheless con homicide, victed of deliberate con- 61 L.Ed.2d 46-47. every presumed

Similarly in at hand the trial that intentional homicide the case jury “person court be contrary appears instructed the malicious until the presumed to be mind and discre- of sound that the burden is the defendant tion;” person that of sound “the acts of alleviation, prove ex- circumstances of presumed mind and to be a discretion are justification cuse or to the satisfaction of will;” product of and that “a person’s (R. jury. 252-54). person intend presumed ... petitioner argues consequence probable natural and of his to him shifted the burden of acts, may but be rebut- presumption disprove homicide unlawfulness propositions ted.” The three sum of these by showing in that it occurred self-defense. presumption substantially equivalent is a effectively shifting This of burden relieved the one declared unconstitutional Sand- duty of its strom was told that except beyond elements of the a rea- critical crime presumptions could be rebutted. This in- doubt. sonable not, clusion does save the instruc- Recent decisions of the United States Su- tion from its infirm- inherent constitutional preme Court make it clear due ity. While the inclusion fact rebutted, presumption process clause of the Fourteenth Amend- may might arguably the category requires prosecution prove remove it from of a ment mandatory presumption, or conclusive the crime every each and element of court, nevertheless, trial explain failed to Sandstrom, supra; a reasonable doubt. presumption might rebutted, how the York, Patterson New U.S. by evidence, preponderance whether some a 2319, (1977); Mullaney 53 L.Ed.2d 281 S.Ct. quantum evidence or other some of 1881, Wilbur, 684, v. 421 95 S.Ct. 44 U.S. proof. The effect to leave jury the (1975); Winship, 508 In 397 L.Ed.2d re U.S. with incomplete an statement of the law 358, 1068, (1970). 368 90 25 L.Ed.2d S.Ct. which in this court’s view is no better than principles in these cases established had the altogether trial court failed to in- retrospective appli- been held have to have clude the fact that presumption the could Carolina, See, v. North cation. Hankerson be rebutted. a Consequently, 2339, 233, 53 L.Ed.2d 306 432 U.S. 97 S.Ct. jury might well pre- have construed the York, (1977); New 407 City Ivan V. v. of sumption conclusive, directing it to re- 203, 1951, 92 32 L.Ed.2d 659 U.S. S.Ct. turn a guilt verdict'of “once convinced of state, (1972). may place A the the facts triggering presumption.” defense proof burden of of an affirmative - Sandstrom, -, supra, U.S. York, v. New on defendant. Patterson 2456, S.Ct. at 61 L.Ed.2d at 47. Even if the supra. how state defines the Therefore presumption conclusive, is not deemed the burden of crime and how it allocates court’s failure explain presump- are of critical of affirmative defenses proof tion could some evidence rebutted importance inquiry. to this greater rather than by quantum some of as follows: Georgia defines murder proof may well have shifted burden of (a) murder when he person A commits petition- of his innocence aforethought, unlawfully and with malice er. possibility constitutionally Either is im- causes the permissible. express implied, either or being. Express death of another human B. imper- The trial instruction court’s intention unlaw malice is that deliberate missibly per- the burden of shifted fully life of a fellow away to take every suasion of each element of creature, which is manifested external peti- crime State to the from the Malice capable proof. circumstances tioner. implied shall be no considerable where provocation where all the appears, and A ground setting related aside the killing show circumstances of the an portion conviction is found in quoted instruction heart. previously malignant which states abandoned and burden-shifting charge Ann. 26-1101. critical ele- North Carolina’s Ga.Code § (1) are unlaw- is charge ments of crime therefore which the same as the in this case. (2) See, Hankerson, fully causing death of another hu- State 288 N.C. being (3) aforethought. man with malice grounds rev’d on S.E.2d 432 U.S. trial, petitioner’s Georgia At the time of the (1977). S.Ct. L.Ed.2d nominally placed proving burden North Carolina allows See, self-defense on defendant. presumption of “malice” and “unlawful- 231 Ga. McClendon proves ness” to when the be raised This, however, simply is not “intentionally wound was inflicted judge’s placing case of the trial instruction proximately the victim which caused burden of of an affirmative de- By employing presumption death.” objection fense real accused. The unlawfulness, the state does far more charge with lies the allocation of the procedur- than “create an inference that proving disproving burden or ele- ally going shifts the burden of forward ments of the crime between the state and instead, . proof” with the . . the accused. In essence the court instruct- prove “preponderance” accused must ed the that once the state, that he in self-defense. The acted proved that the homicide was the result of therefore, bear does not the burden act, an intentional the essential elements of prove merely can first unlawfulness but aforethought may unlawfulness and malice Also, presumption. rest presumed thereby shifting the burden to charge North Carolina self-defense allows negate disprove accused to or those presumption ingredient of one of an elements to the satisfaction jury.2 offense when another is shown. This The adverse impact presumption of this cry far New York law discussed accentuated the fact once the ac- requires the state to Patterson pleads cused self-defense he admits that the each element the murder intentional, homicide was thereby relieving facts, presuming inferring any without any proof. state of burden of proven when each these'

This precisely situation is the same does the defendant bear the burden as the Sandstrom, one disapproved in supra. proving an affirmative defense. may trial court jury not instruct the Stevenson, Cole at 1277. supra, Since presume of elements the crime from the Georgia to include unlawful- law has chosen proof the slaying of and additional facts not aforethought ness and as elements malice establishing themselves the elements of un murder, prosecution of the crime of malice, lawfulness and and then leave it to prove must undertake to all these elements the accused to prove that unlawfulness and beyond a benefit reasonable doubt without aforethought malice lacking were from his presumptions of at some evi- least when actions. negate dence has those been adduced to Stevenson,

In Cole 447 F.Supp. foregoing 1268 elements.3 For the reasons (E.D.N.C.1978), precisely a case point, requirement on court's instruction violated the the district court held process unconstitutional mandated constitutional due proof, proof 2. The standard of proven to the satisfac- of an malice from the fact inten jury, equivalent duty may tion proof of a tional homicide in cases. The all preponderance Therefore, placed of produce the evidence. evi some the accused petitioner excuse, mitigation burden justification to do more than be dence of or present pre- “some prosecution evidence” obligation to contradict fore the to devolves sumption. persuasion He beyond bears the of prove prov burden malice unlawfulness and question. See, Hankerson, on the ing Mullaney, State v. 288 an intentional homicide. See su 632, 575, N.C. 632, 220 28; Hankerson, rev’d on pra, 288 n. State v. N.C. grounds 233, 432 case, U.S. 97 S.Ct. 53 L.Ed.2d (1977). 220 S.E.2d In this how ever, evi did adduce sufficient justification trigger of dence self-defense prove may prosecution’s 3. The court does not hold that the not burden to unlawfulness they may be instructed that infer unlawfulness and malice. crimes, stat- every as prosecution prove element of defined of most ment act to be beyond law, an crime doubt.4 is that ute or common done, “unlawfully” must be criminal imper- instruction trial court’s C. The is, by act done self-defense an since proof the burden missibly placed must “lawful”, prosecution definition petitioner. on the of self-defense in order of self-defense absence prove Although the instruction trial court’s crime element prove essential an of the elements does of self-defense obverse is, unlawfulness. party, proof allocate the to either burden stated, viz, to easily more reasonably the murder can be read prove self-de- defendant require the placing of self-de burden relieve fense—(lawfulness)—would petitioner. fense on the While Patterson v. ele- an essential proving prosecution York, supra, appear New to allow would charged—(unlawful- the crime ment of place state to the burden ness). defenses, including self-defense, affirmative Leeke, defendant, (D.S. F.Supp. fundamental conflict Porter v. C.1978). allocating prosecution exists in to the and, proving burden of unlawfulness petitioner’s After conviction the time, allocating same accused Georgia Appeals reached the same Court self-defense; proving burden of self-de holding conclusion that: being mutually fense and “unlawful” exclu finding ne- . a of self-defense same, i.e., question, sive determination of the gates unlawful- the essential element of

justification vel the crime. The non for within murder meaning ness of our problem succinctly has been stated as fol statutes. For lows: required prov- State to meet its burden of spite apparent dilu- In of Patterson’s unlawfulness, ing the element of must Mullaney, recent tion of the force of prove beyond therefore a reasonable nearly opinions are and federal court justification. doubt the absence in their view that self-de- unanimous fense, plea”, 742-43, is not while an “affirmative Johnson v. defense, e., i. while a (1976). a “true” affirmative 224 S.E.2d From the in required to raise the may terrelationship require defendant the unlawfulness evidence, issue of some nature of the self-defense ment of the offense and the raised, prosecution inescap once such issue is self-defense the court reaches reasonable doubt able conclusion that the absence of self-de must commit- fense is an element of the crime which charged that the crime was not disprove beyond must a reason ted in The rationale behind self-defense. an essential ele- since view is that able doubt.6 Therefore the instruction in this by respondent argues petition (1976), 4. court of The on remand the that since and reversed (1976), voluntary manslaughter 343, Ga.App. er appeals, was convicted of 75 231 S.E.2d 140 murder, Mullaney progeny supreme ground rather than decision and its court on the inapplicable justi charges pro- burden-shifting abolishing are had because self-defense and all Moore, relationship only, spective application fication bear no direct to the ele see State v. 269, holding voluntary manslaughter. (1976), ments of 241 Under 237 227 S.E.2d Ga. law, Georgia 26-1102, disapproved. court feels con- Ga.Code Ann. volun This § was never tary manslaughter disposes only adopt decision of first Johnson malice to strained aforethought Supreme especially States element of murder but retains the the United since apply might justi “unlawfulness” element. Self-defense or that state courts Court has held fication, therefore, by precipitated changes is also defense to volun in state decisional law tary State, manslaughter. Mullaney retrospectively. v. North Johnson v. Hankerson 137 Ga. App. 740, 859, Carolina, supra. v. 224 S.E.2d also Commonwealth vacated and remand See ed, 276, 345, 390, (1978). Lynch, 237 Ga. 227 383 A.2d 1263 S.E.2d rev’d on other 477 Pa. grounds (1976); 140 231 S.E.2d 75 (6th Egeler, 515 Cir. v. 583 F.2d 6. See Berrier Reed, F.Supp. (W.D.N.C. Reeves v. 452 783 1978) (absence of is an element of self-defense 1978). prosecution Michigan law murder under Doe, R.I., by prove); 925 Although 390 A.2d 5. In re Johnson was the su- must vacated Mullaney preme court, (1978) (“. prohibits . 227 S.E.2d 345 . Ga. question unconstitutionally portions charge. shifted the bur- unconstitutional of den Sandstrom, from to supra. See the petitioner. that the IT IS ORDERED THEREFORE

It remains to be determined petitioner whether respondent release cus- the erroneous instructions are nevertheless immediately judgment after tody beyond Chap harmless a reasonable doubt. court either failure of this becomes final California, man v. 386 U.S. 87 S.Ct. respondent appeal judgment this (1967). L.Ed.2d 705 The witness to upon appeal. after affirmance court in The the homicide was the defendant himself and the meantime will entertain a motion the state’s ease consisted of cir otherwise petitioner pending for admission to bail cumstantial evidence. There were circum disposition appeal. final the matter supporting stances the self-defense claim. shooting The premises on the occurred APPENDIX

the temporary residence of the defendant. The voluntarily; victim came to the house STATE, Ga.App. 124, HOLLOWAY petitioner seek did not him out. The drinking victim had heavily day on the shooting. hunting A knife was DEEN, Judge, dissenting. Presiding victim, found near the body of the and fully majority I concur in all that there no evidence show that disagree, in holds Divisions and other than the victim’s. All these facts are majority’s opinion with the consistent theory with the self-defense and general grounds and would reverse the while there are peti inconsistencies in the judgment being sup- of conviction as not version, they tioner’s not overwhelming do ported by the evidence. ly preclude possibility of self-defense. following The record reveals petitioner did not guilty find Appellant phoned elicited at trial: charged, murder as but voluntary report the sheriff’s office an incident manslaughter, offense, a lesser included home, caretaking his father’s where he was fact which casts strength doubt on the during hospital. stay his father’s in the suggests state’s case and a compromise deputy responded the call sheriff between acquittal murder jury. lying the door- found decedent in Furthermore, judges three Georgia way made a appellant house. The Appeals Court of strongly dissented from to the officer to the effect that the affirmance of petitioner’s conviction drunk, him ground the deceased was had cursed on the the evidence adduced begun against fight, and that the decedent was insufficient had when support the followed him into residence Holloway conviction. 137 Ga.App. 124, disengage he tried to from the (1975) himself S.E.2d 898 (Deen, fight. Appellant J. stated that dissenting, concurred further Clark Stolz, JJ.). deceased had him knife and Under these attacked with a circumstances this court cannot that he had been in self-de- conclude a reason forced shoot able doubt that police the erroneous fense. The instructions officer testified did petitioner’s not contribute gunshot convic man had in his left dead one wound Finally tion. general the correct and on his which instruc shoulder a cut forehead prosecution’s tion on the bloody. burden dirt were visibly of was not Grass and beyond a reasonable doubt does not cure the of the found on the of the back inside placing F.Supp. (N.D.W.Va.1978) (under of burden on the 756 West Vir- prove ginia defendant to that he acted in self-de- law defense self-defense an affirmative fense.”). Weatherholtz, directly any But see Frazier v. to of the related elements (4th Mohn, 1978); crime). F.2d 994 Cir. Williams v. belonged

failed to establish it whether to body deceased’s trousers and his had been appellant or to the deceased. day rainy

covered a sheet. The was with evidence offered the state to and the officer further that testified prove appellant committed the had wet, appellant was there scratches on were testimony was the of officers that homicide stomach, his his shirt had torn and been had made statements them appellant signs ripped and there were of a undershirt testimony admitting the and the homicide porch. scuffle on the An autopsy revealed’ he shot the appellant himself that that trajectory of the bullet was incon- self-defense, and at a time deceased in appellant’s sistent with the version of how advancing upon decedent him when the was he alleged shot his assailant. A further evidence relied with a knife. Thus the discrepancy developed appel- between the story prove lant’s the homicide and physical upon by and the evidence in the state that appellant originally appellant’s evidence and his related that removed prior mitiga deceased had his coat of showed circumstances likewise attack but the coat itself revealed bullet justification. mani It is therefore tion or hole expert which was described in testimo- guilty of mur that a of festly clear verdict ny point-blank having as been made at returned, not have der, it been would had range. Appellant also State, noted that Jones v. been allowed stand. S.E,2d body spread he had used cover the had When, 195, 91 514. Ga. been taken from the house but the widow guilty of man of jury returned verdict testified it was to the one that identical effect ac appellant was in slaughter, which had been used her husband in his Was the of the crime of murder. quitted missing truck and that had been since the a verdict of support sufficient evidence day of her husband's death. manslaughter a verdict of guilty of or was Nolen v. urged justifiable homicide demanded?

Based this evidence the State, 674. Ga.App. appellant that had the dece- murdered questions are exclu (relying dent of his on am aware that of fact in the cab truck jury, but testimony sively of the bullet for determination trajectory that any or not there hypoth- question an whether would be “consistent” with such esis), support is one law dragged body to the house a verdict had evidence logical if, legal de (relying testimony grass under all and on the that and that evidence, a verdict dirt the dead from the were discovered in the ductions back unwarranted, may and should set “possibly this court testimony man’s trousers and Rutland v. had probably” the cut the forehead it aside. offered gunshot wound) been Here the evidence inflicted after the S.E. unjust story (re- appellant had fabricated the self-defense the state to totally was lying appellant’s the life another ifiably on the inconsistencies in took in the present- the other The inconsistencies statement and circumstantial. ed). concerning the dead appellant testimony statements appellant’s elicited coat, spread and thorough investigation was of the truck man’s location he made when was position but there was no evidence found deceased was go credibility which would indicate a had been to his homicide shot him prerogative there and that near its to disbelieve committed blood found within coat was analyzed points and to truck was “canine blood.” these find death, that day rainy, signs body being Since the was worn at the time of no having dragged truck and spread found. The came from the were when the knife was not on his knees appellant alleged appellant to have been fired; however, a con used to sustain by the man to with dead attack him shot must have there fingerprints no discovered but tests for viction jury to find made; subsequent were to authorize investigation been evidence element, ed to show such the evidence does deceased, appellant that shot the not not Wall v. guilty. authorize a verdict under where was actu- circumstances there State, Ga.App. Appel S.E. apparent necessity al or to do so to save his that there was a imported lant’s statement life, engendered hot own but in blood pro to need necessity for his actions—the the deceased’s Penna- conduct toward him. manifestly tect his own life. “It would State, v. Ga.App. mon S.E.2d person criminally a bound unfair to hold study 890. A careful of the record reveals a which the commission admits theory the only upon that which state legally of an act and in the same breath argue voluntary manslaughter can that was v. justifies same.” excuses the Owens proved is one mutual combat—that State, 296, 299, 48 21, 23. Here Ga. S.E. supports finding evidence a that fight appel there no evidence other than the was dangerous weapons with or deadly took evi testimony this lant’s statement and and place appellant between the de- justified the legally dence homicide. ceased, when were both at fault and mutu- appellant provoked state did not ally willing fight to because of a sudden making There into an attack. deceased quarrel. State, Weatherby v. 213 Ga. any appellant had no evidence that the 188(4), Appellant urges 97 S.E.2d 698. that combat, intent toward mutual or that acting he was in self-defense to ward off an appellant fight. willingness showed a unprovoked attack him. “The essen- State, Pennamon ingredient, intent, tial mutual in order to 890, supra. combat, constitute mutual must a will- readiness, ingness, assuming yet, and an And even that the evidence intention part parties an fight. appellant both authorized inference that Reluc- tance, or fighting repel unprovoked an acted in passion,” a sudden “heat of attack, is self-defense and is authorized only present evidence before the would law, and should not be confused with theories, guilt two inconsistent one State, mutual combat.” Mathis v. 196 Ga. one Appellant’s theory of innocence. 26 S.E.2d 608. When one is provoked that the that fight, deceased fist reacting repeal an aggressor attack an they began to in the that roll mud and and his prompted solely pro- actions are appellant when the tried flee life, tect his acting he not under the house the deceased drew knife and was “excitement passion,” because such acts theory killed in self-defense. The state’s are justified self-defense which are in the appellant out- committed the crime eyes State, of the law. Odom v. 106 Ga. “sudden, side the house as the result of a App. 126 S.E.2d 472. It is true that the violent, passion,” dragged and irresistible produced by appellant the body into the and fabricated the house show that the perpetrated homicide was story of self-defense. “Where the facts in self-defense was own statement and tes- evidence and all deductions timony and that there was expert testimony theories, guilt present therefrom two one of that the decedent could not have been shot innocence, the and the other consistent with alleged. in the manner This does how- justice humanity compel the law disprove ever the shot was fired in acceptance theory which is consistent self-defense; merely it is some evidence with 13 Ga. innocence.” Davis the appellant position not in the App. 142(1), 78 Thus even assum- S.E. 866. he claimed By when the shot was fired. ing proved had with sufficient same token the state exclusively relied manslaugh- theory voluntary evidence a the statement testimony appel- ter, not, we be com- did should lant to show an essential pelled entirety element of the to reverse because the (here crime of mutual com- reasonable deductions evidence and all bat), produc- and where present no evidence is two theories and therefrom self-defense, my To mind the fact that which is consistent with innocence must be story defendant’s may to be contra- accepted. dicted does not remove state’s burden at least of “hot show some evidence blood.” The majority holds that this evidence explanation The fact that a defendant’s warranted a guilty verdict of of manslaugh- may respects be contradicted in some does ter. If this is true majority then the has necessity proof not obviate the State, overruled Wall v. Ga.App. 305, commission of a crime in order to sustain 27, supra, S.E. and should so Price indicate. conviction. Here the evidence State, 108 Ga.App. 133 S.E.2d possibly contrary appellant’s could be 916 holds that apply Wall does not where coat, statement was the the sheet and the there is evidence of facts and circumstances trajectory. bullet’s If evidence which are contradictory to the statement coat, wearing deceased was was covered made the defendant. In such a case the by a sheet and exactly shot in jury can parts believe certain of the defend- manner described is sufficient evidence to ant’s reject parts, statement and show “hot blood” when the defendant’s parts combine the believed with the evi- respects is correct in other dence of facts and circumstances which contradicting testimony, there is no other they believe in order to logical arrive at a then there is little need for a defendant verdict. The majority jury holds that appeal convicted in a criminal case to his appellant’s authorized to disbelieve tes- general conviction to this court on the timony contradictory because of his state- grounds. ments. agree I jury could disbe- day It is a woeful when the state seeks lieve the appellant as to the deceased’s conviction of evi- murder such scant wearing coat, the location of the day dence. It is an even when a sadder spread to cover body his location jury guilty returns a verdict of man- when the fatal shot was fired. Price does slaughter based so little evidence. not stand proposition for the can perhaps But it is regretful day most disbelieve a story defendant’s and then con- appellate judicial all when an gives court vict him of manslaughter without some evi- sanction to such a result. dence to show that the shot was fired in above, respect- For reasons I must stated “hot blood” and not under circumstances fully majority’s dissent from the affirmance where apparent there was an actual or ne- of this conviction. cessity to do so to save his own life. Penna- mon 138 S.E.2d

890, supra. believe, In Judges' this state I though am authorized to state that the majority not, does CLARK and concur in this dissent. there must STOLZ support a criminal conviction even though the story may defendant’s

contradictory. Where is the evidence to

show the death occurred in the truck and

not the house? There is none. Where is

the evidence that the deceased was shot in yard? Canine’s blood does not seem to

me to be sufficient of this. Where is

the evidence to show that the deceased was any

killed in manner other than in self-de-

fense? There is none. The contradictions

in appellant’s story way disprove in no explanation the shot was fired

Case Details

Case Name: Holloway v. McElroy

Court Name: District Court, M.D. Georgia

Date Published: Aug 22, 1979

Citation: 474 F. Supp. 1363

Docket Number: Civ. A. 78-30-AMER

Court Abbreviation: M.D. Ga.