448 S.E.2d 172 | Ga. | 1994
Dorothy Stiles was convicted of felony murder and possession of a firearm during the commission of a crime, in connection with the death of her husband of 25 years.
2. Appellant maintains that the trial court erred when it followed appellant’s requested charge on accident with a charge based on Grude v. State, 189 Ga. App. 901 (1) (377 SE2d 731) (1989). The holding in that case is derived from this court’s decision in Ford v. State, 202 Ga. 599 (3) (44 SE2d 263) (1947):
Where, as in the instant case, it is shown by the evidence, and admitted in the defendant’s statement, that the homicide occurred by the discharge of a gun held by the accused . . . [which placed another in reasonable apprehension of im*448 mediately receiving a violent injury] . . . , even if the discharge of the gun was unintentional, the offense is murder; and in no view of such facts does it involve . . . accident. . . .
The defense of “accident” is defined in OCGA § 16-2-2 as the absence of a criminal scheme or undertaking, intention, or criminal negligence. “Cocking and aiming a gun ... at [another] ... is an utter disregard for the safety of that person and constitutes criminal negligence,” rendering the defense of accident inapplicable. New v. State, 260 Ga. 441, 442 (396 SE2d 486) (1990).
In light of appellant’s testimony that, at the time the gun was discharged she was using it in a successful effort to frighten the victim, the resulting homicide constituted murder and not accident. Ford, supra. The trial court did not err when it instructed the jury on the Ford/Grude principle.
3. Appellant contends she is entitled to a new trial due to alleged juror misconduct. She asserts that a juror purportedly contacted the district attorney five days after the trial and informed him that the juror knew the deputy sheriff/witness who had arrested appellant. Based on the post-trial admission, appellant contends that the juror deliberately failed to give complete and truthful answers during voir dire, and finds fault with the trial court for its failure to investigate the allegation of juror misconduct. The trial court denied the motion for new trial after hearing argument thereon.
As movant, appellant had to demonstrate that the juror failed to answer honestly a material question on voir dire, and to show that a correct response would have provided a valid basis for a challenge for cause. Gainesville Radiology v. Hummel, 263 Ga. 91 (428 SE2d 786) (1993); Isaacs v. State, 259 Ga. 717 (44 (e)) (386 SE2d 316) (1989). As movant, appellant, rather than the trial court, had the responsibility to present sufficient evidence in support of her motion. See Clifton v. Gillis, 195 Ga. App. 712 (2) (394 SE2d 582) (1990). Inasmuch as the voir dire was not reported and appellant did not complete the record pursuant to OCGA § 5-6-41, she did not establish from the record that the juror failed to answer honestly a material question on voir dire. Even if it were assumed that the juror failed to answer honestly a material question, appellant did not establish that a correct response would have provided a valid basis for a challenge for cause. See OCGA § 15-12-163. Since appellant did not carry her burden of
Judgment affirmed.
The crimes occurred on September 29, 1991, and appellant was arrested at the scene.
While the trial court expressed concern at the sentencing hearing over the use of the Ford/Grude charge in cases where the court would have no discretion in sentencing upon conviction (compare aggravated assault with felony murder), that concern is one better addressed by the General Assembly than the judiciary.