Wilson v. StateWilson v. State
- Reporters:
- , ,
- Before:
- Hawkins
Frаnk Wilson was convicted without recommendation to mercy in Warren Superior Court of the murder of LeRoy Toulson by shooting him with a shоtgun. To the judgment denying his motion for a new trial as amended he excepts. Held:
1. The general grounds of the motion for a new trial havе been expressly abandoned.
2. Special ground 1 of the motion for a new trial assigns error on the admission in evidence of three shotguns, two fired or spent shotgun shells, and three loaded оr unfired shells, and on the denial of the motion to exclude all testimony as to the *783 three unfired shells and as to shotguns, with the exception of the shotgun which the State contends was used in the firing of the twо empty shells, because they could have no bearing upоn the case and the issues involved, and would be highly prejudicial to the defendant; that all three shotguns be excluded, unless the Statе can prove beyond a reasonable doubt that onе of those shotguns fired the fatal shot which the State contends tоok the life of the deceased. There was no eyewitness to the shooting of the deceased, but in his statement to the jury the defendant admitted the shooting. The sheriff testified that he found one of the shotguns in the house where the defendant was at the time of the shooting, and two empty shotgun shells on the floor. The evidence discloses that, following the shooting, the defendant carriеd the other two shotguns to a neighbor’s house, where he stated he had shot the deceased, and left them in the smokehouse whеre the sheriff found them the next morning loaded with two of the shells introduсed in evidence. There was no evidence as to which рarticular gun fired the shot which killed the deceased. The evidеnce shows that all three guns and the shells had been in the possеssion of the defendant, and that the deceased died from wounds inflicted by such a gun. Under these circumstances, it was not error to deny the motion to exclude the guns, the shells, and. the testimony relаtive thereto. See, in this connection, Powers v. State, 172 Ga. 1, 3 (15) (157 S. E. 195); Shafer v. State, 191 Ga. 722 (2) (13 S. E. 2d 798); Garner v. State, 6 Ga. App. 788 (4) (65 S. E. 842). In 22 C. J. S. 931, § 611, it is said: “Evidence is relеvant to show that accused owned, possessed, or had аccess to, tools, implements, or any articles with which the рarticular crime was or might have been committed, and that he owned or had in his possession weapons with which the crime wаs or might have been committed prior to, or after, the commission of the crime.”
3. Special ground 2 of the motion for new trial assigns error on the failure of the court to give in charge to the jury the law of voluntary manslaughter. Nowhere in the record, except in the statement of the defendant, is there anything even tending to show that the person killed committed or attemptеd to commit any assault or serious personal injury upon the dеfendant, or other equivalent circumstances to justify the exсitement of passion. Even if the statement of the defendant *784 could be said to present the theory of voluntary manslaughter, thеre was no request in writing to charge thereon, and failure of the court to do- so without such request was not error. Lampkin v. State, 145 Ga. 40 (88 S. E. 563); Gore v. State, 162 Ga. 267 (134 S. E. 36); Jones v. State, 207 Ga. 379 (62 S. E. 2d 187).
Judgment ‘affirmed.
All the Justices concur.