Harris v. State , 183 Ga. 574 ( 1936 )

Per Curiam.

The defendant, who was convicted of murder, without recommendation, alleged in his motion for a new trial that the court erred in failing to charge the entire section of the Code defining the penalty for murder, and otherwise failing to charge the jury “properly . . with reference to their right in determining whether or not they would recommend the defendant to mercy.” It appearing from the record that the judge charged the jury that “persons convicted of murder” are punished by death unless the jury recommend that they be confined to the penitentiary for life, and also instructed them as to forms of verdicts, to the effect that “We, the jury, find the defendant guilty” would mean punishment by death, and that “We, the jury, find the defendant guilty and recommend that he be punished by confinement in the penitentiary for life,” would mean that “such would be his punishment,” — the failure of the court, without request, to charge the jury more fully as to their right of recommendation was not cause for a new trial. Morrow v. State, 168 Ga. 575 (6) (148 S. E. 500); Meyers v. State, 169 Ga. 468 (4) (151 S. E. 34); Caison v. State, 171 Ga. 1 (2) (154 S. E. 337); Key v. State, 177 Ga. 329 (8) (170 S. E. 330).

The movant assigned error upon the failure of the court, without request, to give in charge section 36-1006 of the Code, as follows: “Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection.” It appears from the record that, in the absence of a request, the judge sufficiently charged the law in regard to voluntary manslaughter. Furthermore, this ground of the motion is incomplete in that it fails to show that voluntary manslaughter or either grade of involuntary manslaughter was involved under the evidence, so as to render a charge upon any of these offenses applicable and proper. Sheppard v. State, 167 Ga. 326 (4) (145 S. E. 654); Williams v. State, 176 Ga. 372 (168 S. E. 5); Armstrong v. State, 181 Ga. 538 (3) (183 S. E. 67); Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305).

The evidence authorized the verdict, and the court did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur, except