Lead Opinion
Clаrence Mark Woody fatally shot Thomas O’Neal Purdue after a dispute over drug money. Woody was convicted of felony murder and aggravated assault and now appeals.
On July 6, 1990, Woody and a male friend drove to Purdue’s home seeking money that Purdue owed to Woody from thе sale of a pound of marijuana. Not finding Purdue at home, Woody and his friend drove to town to search for him but again could not locatе him. Later that same evening at approximately 11:00 or 12:00 p.m., Woody and his girl friend returned to Purdue’s home. As Woody exited the car, he placed a loaded gun in his pocket. Purdue emerged from his home after Woody knocked on the front door. Woody demanded that his money be repaid and a fight ensued.
Purdue gained the upper hand in the fight and began beating Woody severely. Woody testified that he twice begged for his life before pulling the pistol from his pocket and firing two shots. The first shot missed, but two eyewitnesses testified that Woody shot Purdue in the back as Purdue wаs running for the door of his home. The victim was fatally wounded, and Woody and his girl friend drove away from the scene of the crime. Woody disposed of the murder weapon by throwing it out of the automobile window on the way home.
The victim died the following day as the result of the gunshot wound.
At trial Woody presented a main defense of self-defense, a secondary defense of justification and made a written request for a jury instruction on voluntary manslaughter. The trial court denied that request. Subsequently, the jury rejected the malice murder charge, and split on the determination of the felony murder charge. The trial court instructed the jury pursuant to Allen v. United States,
1. Having reviewed the evidence in the light most favorable to the jury’s verdict, we conclude that the evidence put forth at trial was sufficient for a rational trier of fact to have found Woody guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia,
2. Woоdy claims that the trial court erred in refusing to charge the jury on voluntary manslaughter.
In Washington v. State,
In this case the trial court gave a jury charge on justification, but refused to give a requestеd jury charge on voluntary manslaughter. The distinguishing characteristic between voluntary manslaughter and justifiable homicide is whether the accused was so influenced and excited that he reacted passionately rather than simply to defend himself. Gregg v. State,
The evidence presented in this case was sufficient to warrant a charge on voluntary manslaughter. Eyewitness testimony showed that Purdue had beaten Woody to the point where Woody twice begged for his life. Additionally, the fatal shooting happened after Purdue had retreated but within seconds of the fight and wаs sufficiently within the nexus of the altercation so that we cannot conclude, as a matter of law, that a reasonable “cooling off” period had occurred. OCGA § 16-5-2.
The State cites Stewart, supra, and Saylors v. State,
3. The appellant’s remaining enumerations оf error are mooted by our holding in Division 1 of this opinion, and therefore will not be addressed by this court.
Judgment reversed and remanded.
Notes
The crime occurred on July 6, 1990. Woody was indicted for malice murder, aggravated assault, аnd felony murder on September 6, 1990. He was acquitted of malice murder, but was found guilty of aggravated assault and felony murder on September 25, 1990. On Oсtober 19, 1990, Woody filed a motion for new trial which was denied on June 14, 1991. His notice of appeal was filed on July 12, 1991. The appeal was docketed in this court on October 4, 1991 and was submitted without oral argument on November 15, 1991.
Voluntary manslaughter requires that the defendant act “solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reаsonable person. . . .” OCGA § 16-5-2 (a).
Q: “You were on the defense the entire time, weren’t you?”
A: “I was trying to protect myself.”
Q: “That’s all you were doing. I mean that’s why you put the loaded gun in your pocket for self-protection. And then after he started beating you, you were just trying to protect yourself?”
A: “Yes, sir.”
Q: “And after he got you on the ground, that wasn’t enough was it?”
A: “No, sir, it wasn’t enough for him. It was enоugh for me.”
Q: “As a matter of fact, you were begging. How many times did you beg for your life that night?”
A: “Twice. . . .”
Q: “[So you were] — fighting for your life?
A: “No, I couldn’t fight.”
Q: “I mean, you were struggling for your life weren’t you?”
A: “I was struggling trying to get away from him.”
Dissenting Opinion
dissenting.
The majority would reverse the conviction of felony murdеr in this case and order a new trial for the failure of the trial judge to instruct the jury on the elements of voluntary manslaughter as an included offense to murder.
1. OCGA § 16-5-2 (a) provides:
A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; . . .
2. Throughout the trial, Woody’s defense was justification in the nature of self-defense. (“I was trying to protect myself.”) I reiterate here the testimony as set out in fn. 3 of the majority opinion:
Q: You were on the defense the entire time, weren’t you?
A: I was trying to protect myself.
Q: That’s all you were doing. I mean that’s why you put the loadеd gun in your pocket for self-protection. And then after he started beating you, you were just trying to protect yourself?
A: Yes, sir.
Q: And after he got you on the ground, that wasn’t enough was it?
A: No, sir, it wasn’t enough for him. It was enough for me.
Q: As a matter of fact, you were begging. How many times did you beg for your life that night?
A: Twice. . . .
Q: [So you were] — fighting for your life?
A: No, I couldn’t fight.
Q: I mean, you were struggling for your life weren’t you?
A: I was struggling trying to get away from him.
3. It is clear that the evidence shows nоthing that would warrant a finding by the jury that Woody acted “solely as a result of a sudden, violent, and irresistible passion resulting from severe provoсation.” To the contrary, the evidence shows that Woody was either guilty of murder or entitled to acquittal on self-defense.
4. The evidence and Woody’s own account of the event demonstrate clearly that the trial court correctly declined to give the requested charge on voluntary manslaughter. See Swett v. State,
I am authorized to state that Justice Hunt joins in this dissent.