The defendant was indicted and tried for the offense of murder in Gilmer Superior Court. He was convicted and given a life sentence from which he appeals and enumerates eight alleged errors.
1. The first enumeration of error сomplains of the admission of certain evidence consisting of bloodstained carpet removed from thе premises where the deceased and defendant lived. The evidence was removed during the initial investigation at the scene, and no motion to suppress was filed as required by Code Ann. § 27-313. Probable cause existed at the time the evidence was removed and when the defendant was arrested. It was not error to admit this evidence.
See Bridges v. State,
2. The seсond enumeration of error complains of the admission of an in-custody statement made by the defendant. The trial court conducted a hearing, out of the presence of the jury to ascertain whether the statement was freely and voluntarily made. An agent of the Georgia
*468
Bureau of Investigation testified that after he explained the defendant’s rights to him three or four times to make sure he understood them, the defendant executed a written waiver of counsel and gave the statement complained of in this enumeration of error. The trial court made a determination that the statement was freely and voluntarily made, and the evidence produced at the hearing wаs sufficient to sustain such determination. There was no error in admitting this statement.
High v. State,
3. Enumerations of error numbers 3, 4, 5 and 8 complain of the sufficiency of the evidence, that the evidence did not exclude every other reasonable hypothesis and that the evidence did not authorize a charge on murder.
The victim was found lying on her back just outside the door of the trailer where she and the defendant lived. The evidence revealed, that she and the defendant had been drinking and arguing during the day, that she had a 0.24% blood alcohol reading and that he hadaO.21% blood alcohol reading. A neighbor testified that at about 6 p.m. she heard a scream, ran to the door, saw the defendant pulling the deceased back into the trailer by the hair, saw the victim had blood on her face and appeared to be struggling tо get away from the defendant. This witness further testified that about ten minutes later the defendant came to the witness’ doоr and asked for help to take his "wife” to the doctor and stated that she was about dead. The witness then callеd the police who arrested the defendant at the scene.
The medical testimony showed that death was сaused by shock from blows to the head and neck coupled with degenerative disease of the heart and brаin with the most damaging blow being to the victim’s neck.
The defendant testified that although he and the victim had argued, he had only struck her one time and that such blow was on the shoulder with the palm of his hand.
The evidence was sufficient to sustain the conviction as charged in the indictment, to wit: that the defendant did "kill one Jessie Waters Cox, a human being, by beating . . . [her] with his fist, and certain objects, the
*469
exact description being unknown.” These enumerations of error are without merit.
Strong v. State,
4. The sixth enumerаtion of error complains of the trial court’s failure to charge on simple battery in connection with the charge on involuntary manslaughter. The court charged Code Ann. § 26-1103 (a) and then gave the definition of a felony and misdemeanor. The court also charged Code Ann. § 26-1301 on simple assault. The defendant argues that the evidence in the case shows if the defendant committed any act that was unlawful, it was nothing more than a simple battery and this would constitutе only a misdemeanor. It is then contended that had the jury been given an opportunity to properly consider the definition of simple battery in connection with the charge on involuntary manslaughter and the evidence in the case, it would not have found him guilty of murder.
In Brassell v. State,
In the case sub judice the defendant’s contention was that the deceased met her death by accident when she stumbled into the door frame, hit her head and fell out of the door onto the ground. If the jury had accepted such contention, it would have found the death to be acсidental and acquitted the defendant. While the evidence may have authorized a verdict of involuntary manslaughter, it did not demand such a verdict and in the absence of a request for a more complete charge on thе subject, the trial court did not err in failing to expound thereon beyond the charge given. This enumeration of error is without merit.
5. The seventh enumeration of error complains of the charge of the trial court dealing with malice. In instruсting the jury as to what should be considered in determining whether malice existed, the judge referred to *470 "the killing.” It is contended that this language constituted an opinion of the trial court in violation of Code § 81-1104. Inasmuch as the jury would not be callеd upon to determine whether malice existed until it had determined that a "killing” had taken place, such terminology by thе trial court would not constitute an expression of opinion resulting in reversible error under Code § 81-1104, supra. This enumeration of error is without merit.
Judgment affirmed.