Chamlee v. State , 163 Ga. 312 ( 1926 )

Atkinson, J.

On a trial for murder the evidence for the State tended to show a trivial dispute, and that the defendant drew his pistol and fired the fatal shot without any effort haying been made by the deceased to commit any act of violence against the defendant or to engage in a fight with’ him. The evidence also tended to show that there were rocks on the ground, and that the bullet entered the left side between the ninth and tenth ribs, “and it ranged downwards and passed through his stomach, and through several loops of his intestines, and probably entered his right leg,” from which death resulted in a few hours. In his statement before the jury the defendant stated that the deceased “grabbed a rock to throw at me, and I shot him, and I had to. do it to keep him from hitting me with that rock; . . it was a pretty good sized rock. It would have killed me if he had hit me in the head with it.” Held:

1. “There was no evidence in the case requiring or authorizing a charge upon the subject of voluntary manslaughter, and the failure of the court to charge upon that subject was not error. . . Even if the statement of the accused authorized a charge upon the subject of voluntary manslaughter, there was no request in writing to so charge; and in the absence of a written request the court was not bound to present a theory of the case based solely upon the statement.” Felder v. State, 149 Ga. 538 (101 S. E. 179).

No. 5229. December 15, 1926. J. B. Whitaker, for plaintiff in error. George M. Napier, attorney-general, O. 0. Pittman, solicitor-general, and T. R. Gress, assistant attorney-general, contra.

2. The evidence was sufficient to support the verdict, which was one finding the defendant guilty of murder, without recommending him to the mercy of the court; and there was no error in overruling the defendant’s motion for a new trial.

Judgment affirmed.

All the Justices concur.