The defendant was charged with the offense of murder. He appeals his conviction of manslaughter. Held:
1. Defendant’s enumerations of error 1,2,4 and 5 are interrelated and will be discussed together. After defendant had been advised of his Miranda rights he gave a statement to the police which was taped. The tape was *666 lost and defense counsel made such statements when questioning a police officer as: "... isn’t [the tape] the key to this case as to what was said, and you are telling this jury here that you fellows lost the tape ... so if the tape could be [found] — the jury could sit there and listen to determine the accuracy of the statement which was made to you. ... You said [the defendant told you] ... I don’t know which hand grabbed the gun ... a few minutes ago [you testified the defendant] told you that the deceased used his right hand to grab the gun... Naturally the tapes would resolve the whole issue, wouldn’t it?” Shortly thereafter, the district attorney announced the missing tapes had been found. He referred to this statement as a "confession.” Defense counsel moved for a mistrial. The court denied the motion and instructed the jury that the characterization of the statement as a confession was improper, they should disregard the statement of the district attorney, and the jury would decide "what the statements do and do not import, and whether or not they amount to an incriminatory admission.”
Defendant contends the court erred in failing to grant a mistrial, and a new trial, and in instructing the court as he did. Where counsel makes an improper statement in the hearing of the jury it is the duty of the court to rebuke counsel and instruct the jury so as to remove the improper impression, or — in his discretion he' may order a mistrial. Code § 81-1009;
London v. State,
Our Supreme Court has held that where the trial court acts immediately to correctly charge the jury to disregard such statement and takes such action as in his judgment will prevent harm to an accused, a new trial will not be granted unless it is clear that his action failed to eliminate from the consideration of the jury such improper remark.
Spell v. State,
2. Enumeration of Error 9 avers error in the denial of defendant’s motion for new trial. Enumeration 10 also alleges that the trial court erred in failing to strike 15 subparagraphs of the court’s order in denying the motion for new trial. A review of the evidence discloses ample support for the verdict. Thus, the general grounds are without merit.
The special grounds enumerated in defendant’s motion before the trial court are substantially the same as the first eight grounds of error enumerated to this court. The trial court’s order stated the basis for its denial of the motion. Defendant contends the bases stated are "untrue, scandalous and are not contained in the trial transcript.”
Some of the subparagraphs referred to deal with remarks of the defense counsel in opening and closing statements. Those statements were not transcribed. The trial judge signed the first order and made several changes in a subsequent order but did not fully comply with counsel’s motion. Defense counsel has offered naught but argument. "In the absence of a transcript, we must assume the evidence supports the judgment of the court.”
Butler v. Butler,
3. The defendant alleges that the trial court erred in failing to charge the jury on "accident” and "involuntary manslaughter” and in charging the jury that the homicide was justifiable under the law when in fact the defendant defended "on the ground of accident and self-defense in that he did not intend to shoot or hurt anyone.”
It is the duty of the court to charge the jury as to every material, substantial issue in the case, when it is supported by the evidence.
McNeill v. State.
135 Ga. App.
876, 878 (
The instructions of the court should cover contentions made and argued before the jury — if they are supported by the evidence. 1 Reid’s Branson Instructions to Juries 172, § 53 (1). However, where defendant’s theories of his defense are made in the opening and closing argument of defendant’s counsel and are not recorded we must rely upon the trial judge and will assume he performed his duty properly and the evidence supported the giving of the instruction. In the past this court has referred to defendant’s requests for instructions
(State v. Frazier,
In the instant record the trial court’s order contains the reasons for his denial of a new trial. One of his findings was that the defense counsel informed the jury in opening *669 argument that the defendant was "justified in killing the deceased based upon his contention of self-defense,” and defense counsel’s "closing argument related exclusively to justification through self-defense ...”
An accused should have the jury instructed on his principal theory of defense — when it is supported by the evidence. And it is error for the court to fail to instruct on the sole theory of defense, even without a request
.Pollard v. State,
There is no evidence that the defendant requested a charge on either "accident” or "involuntary manslaughter.” The failure to charge on the lesser offense of involuntary manslaughter, without a written request, is not error.
State v. Stonaker,
It is evident that defense counsel followed a trial tactic in pursuing a theory of defense that was not successful. On appeal he now pursues another theory — "accident.” Adefendantwill not be permitted to claim error when he selects a specific defense theory to pursue at trial to the exclusion of other possible defenses which may or may not be supported by the evidence, and after casting his lot with that theory of defense — and not requesting instructions on other theories which find some support in the evidence, complain for the first time at the appellate level that the trial court erred in failing to instruct on a possible alternative theory — although the court instructed on defendant’s principal theory of defense. Cf.
Wyatt v. State,
4. The trial court did not err in recharging the jury in accordance with its request to repeat "the
definition that you gave .
. .concerning murder and the degrees of manslaughter . . .” (Emphasis supplied.) When he had finished the court asked: "Now, is there any other principle that you wish to hear? The Foreman: That’s all that was requested, sir.” There was no objection by counsel and no request for further instructions. If counsel desired further elaboration he should have requested it.
Thomas v. State,
5. The defendant contends it was error for the trial judge to include in his order of March 7, 1978, which amended the previous order of the court on the motion for new trial, the statement that "accident is not an issue in that defendant testified that he killed the deceased in self-defense and not accidentally.”
There is some evidence that could be interpreted as a basis for accidental firing of the weapon. The defendant testified that deceased grabbed "[m]y hand, like this, the gun (No further description for the record)... I went back . . . And, then that’s when the shot was fired real fast.” However, defense counsel also asked the defendant "Why was it necessary to shoot twice, do you know? A. It happened so fast, you know. I really didn’t intend to kill anybody, you know.” It was defendant’s counsel who raised the theory that "it was necessary to shoot twice.” Necessity to shoot is compatible with the theory of *671 self-defense. Necessity is the antithesis of accident. The trial court’s finding is supported by the evidence of record. We find no prejudice to defendant from the trial court stating his reason for denial of defendant’s motion for new trial.
Judgment affirmed.