Stevens v. StateStevens v. State
- Reporters:
- , ,
- Before:
- Pannell
Thе defendant was charged with murder and, on trial, was convicted of involuntary manslaughter in the commission of an unlawful act, аnd the jury fixed his sentence at five years. After sentence hе filed his motion for new trial on the three general grounds and five special grounds numbered 4 through 8. Special grounds 5 and 7 were not argued, and will be considered as abandoned. The еnumerations of error filed in this court assigned error on the overruling of the motion for new trial, the refusal to direct a verdict of acquittal and two assignments of error on the same charge.
1. The charge, the giving of which is complained of in the specific enumerations of error, is disclosed by the record to have been requested by the defendant in his rеquest to charge number 4. “A party cannot obtain a reversal for an error which he has invited, as by a request to charge.” Horton v. State, 120 Ga. 307 (47 SE 969); Partee v. State, 19 Ga. *42 App. 752, 756 (92 SE 306); Chatman v. State, 6 Ga. App. 564 (65 SE 360):
2. The trial judge charged the jury in reference to voluntаry manslaughter in the commission of a unlawful act. The error аssigned is his failure to give the following charge: “I charge you that it is unlawful for any person to intentionally point or aim a gun or pistol, whether loaded or unloaded, at another, nоt in sham battle by the military, and not in self-defense or in defense of habitation, property or person, or other instanсes standing upon like footing of reason and justice.” Anothеr error is assigned-on the failure to charge the sentenсe which could be given if the jury found the defendant guilty of involuntary mаnslaughter in the commission of a lawful act without due cautiоn and circumspection, that is that the defendant be punishеd as for a misdemeanor. See Code § 26-1010. Neither of these complaints as to failure of the court to charge was called to the attention of the trial judge as required by Section 17 of the Appellate Practice Act nor, in our opinion, do they come within the meaning of or meet the rеquirements of Paragraph (c) of Section 17. Nathan v. Duncan, 113 Ga. App. 630 (6) (149 SE2d 383); Ga. Power Co. v. Maddox, 113 Ga. App. 642 (149 SE2d 393); Southern R. Co. v. Grogan, 113 Ga. App. 451, 458 (148 SE2d 439); Hollywood Baptist Church of Rome v. State Hwy. Dept., 114 Ga. App. 98 (3) (150 SE2d 271); Barlow v. Rushin, 114 Ga. App. 304 (151 SE2d 199); Clark v. Belleau, Inc., 114 Ga. App. 587 (3) (151 SE2d 894).
3. Another ground of the motion for new trial complains because the trial court permitted the State to use as a witness in rebuttal а person who had heard all of the testimony in the case up to that point. The rule was applied to all of thе witnesses and they were sequestered; however, the reсord shows without dispute that this witness was unknown to the prosecution until the witness, during the progress of the trial and just before he was рut upon the stand, informed the solicitor voluntarily as to his knowledge of the matters subsequently testified to by him. Under these circumstаnces there was no abuse of discretion on the part of the trial judge in permitting such witness to testify, the witness not being incоmpetent to testify because of lack of sequestrаtion. See Shelton v. State, 111 Ga. App. 351 (1) (141 SE2d 776); Shelton v. State, 220 Ga. 610 (140 SE2d 839).
4. The evidence, though in part circumstantial, was sufficient to authorize the verdict found and the trial court did not err in entering sentence thereon and in overruling the motion for directed verdict.
Judgment affirmed.
Bell, P. J., and Whitman, J., concur.