Clarence Moore, Jr. was indicted, convicted and sentenced to life imprisonment for the murder of Raymond Autrell Peacock. A motion for new trial was filed, amended and overruled and the present appеal filed.
The evidence disclosed without dispute that on the day of the homicide the defendant went to the place where the deceased was employed, asked him to step outside and within a matter of minutes the defendant shot the deceased six times with a .38 caliber pistol. The disputed facts relate to the events leading up to this encounter.
1. '"Provocation by threats will in no case be sufficient to free the person killing from the crime of murder, or reduce the homicide from murder to manslaughter, when the killing is done solely for the purpose of resenting the provocation thus given
(Cumming v. State,
The events occurring during the encounter, which re- *664 suited in the death, were presented by the defendant to the jury in an unsworn statement. The defendant related a factual situation of threats and menaces and a shooting under circumstances which would have authorized the jury to believe that the defendant was acting under the fears of a reasonable man when he shot the deceased. However, such a finding was not demanded, and under the evidence adduced by thе State relating to events which occurred the previous night and earlier on the morning of the homicide, the verdict was authorized by the evidence.
2. Error is enumerated on the refusal of the trial court to permit а thorough and sifting cross examination of one of the State’s witnesses. The record discloses that the trial court expressly ruled that counsel for the defendant could ask this witness any question he wished and that it would be taken up question by question. The court excluded the answer to one question which had been answered three times and did not by such ruling prohibit a thorough and sifting cross examination of such witness. Compare
Hunsinger v. State,
3. Error is enumerated on thе ruling on admitting a statement made by the victim shortly after the shooting which resulted in the witness taking certain actions. Assuming, but not deciding, that such statement was not admissible as a part of the res gestae it was admissible to explain thе conduct of the witness. See
Code
§ 38-302;
Estes v. State,
4. During the opening argument by the State, a prejudiced and inflammatory statement was made by specially employed counsеl for the State. A motion for mistrial was made by counsel for the defendant. The trial court instructed the jury not to consider such statement and rebuked the specially employed counsel. Thereafter, counsel fоr the defendant renewed his motion for mistrial, which was overruled.
"[T]his court has repeatedly held that if the trial judge acts immediately, and in the exercise of his discretion takes
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such action as in his judgment prevents harm to the accused as a result of such improper statements, a new trial will not be granted unless it is clear that such action failed to eliminate from the consideration of the jury such improper statements.
Brown v. State,
Where, аs in this case, the trial court not only instructed the jury not to consider such argument but also rebuked counsel, no abuse of the discretion granted by Code § 81-1009 appears.
5. The jury returned to the court soon after it had retired to consider its verdict and asked the court for instructions as to the punishments which the defendant could receive under the different verdicts authorized by the court’s instruction. The trial court instructed the jury that at such point in the trial they were only cоncerned with the guilt or innocence of the defendant of such charges and not with punishment. Error is enumerated on such instruction and it is contended that the jury should have been instructed as to the possible sentences fоr each crime that the jury was authorized by the court’s instruction to find the defendant guilty of.
This enumeration is without merit. The Act of 1970 (Ga. L. 1970, pp. 949, 950; Code Ann. § 27-2534) provides in part: "At the conclusion of all felony cases and after argument of сounsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment.” (Emphasis supplied.) It is only after the initial determination of the defendant’s guilt of a felony that the jury is conсerned with the sentence of the defendant. To allow the jury to consider the various sentences for the various offenses authorized by the court’s instruction before a determination of guilt would be to repeal the intent of the legislation providing for a prior determination of guilt before considering punishment in felony cases.
*666 6. Error is enumerated on the refusal of the trial court to give in charge various requests to chargе which had the effect of exonerating the defendant unless he did not reasonably believe that the shooting was necessary to protect himself. These charges had placed justification upon the reasonable fears of the defendant rather than the fears of a reasonable man.
In support of these enumerations of error the defendant cites Code Ann. §26-902 (a) as follows: "A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person, or the commission of a forcible felony.” (Emphasis supplied by the defendant.)
In construing this language it is necessary to consider the provisions of
Code Ann.
§ 26-401 (p), which defines reasonable belief. This section provides: "'Reasonable belief’ means that the person concernеd, acting as a reasonable man, believes that the described facts exist.” Under this definition the Tule exemplified by the decision in
Fudge v. State,
7. The refusal to give requested instructions relating to defense of habitation is enumerated as error. The evidence аdduced showed that the deceased had been to the house of the defendant on the previous night and asked to see the defendant’s father and wife. When told by the defendant’s younger sister that he could not see them and to leave and not come back, a few words were exchanged as the deceased was leaving, but no further attempt to enter the premises was made, and this was the only encounter, prior to the
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defendant seeking out the deceased at his place of employment, shown between the deceased and any member of the defendant’s family anywhere. Under such circumstances, the requested charge dealing with defense of habitation was not applicable to the facts adduced upon the trial. Compare
Rumsey v. State,
Moreover, in the case sub judice the defendant stated: "He made an effort to draw his hand out of his pocket, and I shot him. He kept coming in on me, and I shot him to stop him. The onliest reason I shot him was to keep him from cutting me and killing me. He kept coming in on me, and I think I emptied the gun at him.”
8. The remaining enumeration of error complains of the failure to give, without request, an instruction as follows: "In determining whether or not there was an interval between the provocation and killing sufficient for the voicе of reason and humanity to be heard, you could consider any instance in which the defendant might have become provoked to a sudden, violent and irresistible passion. If you should find that there was more than one рrovocation which might have created such passion, you should also determine each interval between that provocation and the killing and determine whether or not that interval was sufficient for the voiсe of reason and humanity to be heard.”
This contention is based upon the evidence relating to the presence of the deceased at the home of the defendant on the previous night and the defеndant’s statement relating to the encounter at the time of the shooting which resulted in the homicide.
The court properly instructed the jury: "A person commits voluntary manslaughter when he causes the death of anothеr human being under circumstances which would otherwise be murder if he acts solely as a result of a sudden, violent and irresistible passion resulting from serious pro *668 vocation sufficient to excite such a passion in a reаsonable person. However, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury shall in all cases be thе judge, the killing shall be attributed to deliberate revenge and punished as murder.” This charge did not limit the jury’s consideration to either alleged provocation exclusively, but to the contrary, under such charge the jury could have considered any provocation shown by the evidence or the defendant’s statement and based a conviction of voluntary manslaughter thereon if it decided that the interval between the provocation which caused the shooting and the shooting was not sufficient for the voice of reason and humanity to be heard.
Assuming, but not deciding, that the charge contended for should have been given upon timely request, yet, in the absence of such a request the charge given the jury amply covered the law respecting such subject.
No error of law appearing and the verdict of the jury being authorized by the evidence, the conviction of the defendant must be affirmed.
Judgment affirmed.