406 S.E.2d 243 | Ga. Ct. App. | 1991
Alexander Zachery was charged with murder in the shooting death of Kenneth Banks, and a Bartow County jury convicted him of voluntary manslaughter. He appeals from the denial of his motion for new trial.
Appellant’s sole enumeration raises the general grounds. Specifically, appellant asserts that the evidence demands a finding of justification pursuant to OCGA § 16-3-23.
Construed to support the verdict, the evidence adduced at trial established that appellant and Banks lived in the same Kingston neighborhood and had been acquainted with one another for several years. Early in the evening of Saturday, March 4, 1989, after consuming several shots of corn whiskey at his home, appellant went to a neighborhood cafe. Upon encountering Banks outside after the cafe closed, appellant asked for a ride home. When the two men arrived at appellant’s home, appellant invited Banks inside for a drink. James Newell, who was living with appellant at the time, testified that when he arrived at the house about 8:30 p.m., Banks and appellant were sitting in the living room drinking corn whiskey. Newell recalled that
Appellant testified that he wanted Banks to leave once he became so intoxicated that he disturbed the furniture and other items in appellant’s home, but that Banks became belligerent and argumentative when appellant told him to leave. After Banks departed from the house but continued to bang on the front door and curse loudly, appellant stated he fired the warning shot through the door in an attempt to scare Banks. Appellant recalled that the shouting stopped for a few minutes, but Banks soon started pounding on the door and cursing at appellant again. Appellant testified that Banks entered the house with his hand in his pocket and advanced toward appellant, threatening to kill him. Appellant then fired a shot “to stop the man from hurting me or something or killing me, whatever he had in mind to do.” He stated that he was aware of Banks’ tendency to become violent when he drank, and that after Banks failed to leave despite the warning shot, he became “scared for [his] life.” The investigators found no weapon on or near Banks’ body, and Newell testified he did not see Banks with a weapon.
“A person is justified in using deadly force in defense of habitation only if the entry into his habitation is made or attempted in a violent and tumultuous manner and he reasonably believes the entry is being made for the purpose of assaulting or offering personal violence to a person therein, or to commit a felony therein, and such
Judgment affirmed.