Wilcox v. State , 238 Ga. 431 ( 1977 )

Undercofler, Presiding Justice.

Oliver Wilcox was convicted of murdering his wife, Alice Wilcox, and was sentenced to life imprisonment. He appeals the denial of his motion for a new trial on the general grounds and the denial of a motion for continuance.

The evidence shows Wilcox parked his car near the rear of an automobile in which his estranged wife and Emory Smith had arrived about 9 p.m. on April 7,1974, at a house trailer where Alice Wilcox’ daughter, Dorothy Reese, lived. The trailer was located near McRae in Telfair County. Approaching the Smith car, Wilcox testified he observed Smith to be armed with a pistol, so he returned to his car and armed himself. The evidence further shows his wife had left the Smith vehicle and was talking to her sister, Thelma Stewart, and a friend, Mary Alice Parker, who were sitting nearby in their car. Wilcox approached the automobile where the women were talking, greeted them and his wife, and then began walking toward the Smith car with his wife. Witnesses testified that before Wilcox and his wife reached the other ear, she was seen locked with her arms around Wilcox’ neck, shouting, "Quit, Oliver,” followed shortly by the firing of a shot from Wilcox’ gun which hit the victim in the lower left side. After that, a second shot was discharged into the victim’s back behind the left shoulder. The victim fell to the ground, the witnesses stated. Then, shots were exchanged between Emory Smith and appellant with no ill effect upon either of them. Smith fled, and Wilcox, at the insistence of his daughter, Dorothy Reese, left the scene in his automobile. Alice Wilcox was taken to the hospital by the women present where she later succumbed.

Submitted January 14, 1977 — Decided February 9, 1977 Rehearing denied March 2, 1977. .Rembert C. Cravey, for appellant. Phillip R. West, District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Assistant Attorney General, for appellee.

Expert testimony showed Alice Wilcox died from the wounds from Wilcox’ gun, her body and sweater bearing flash bums from the muzzle blasts. The state offered three witnesses who corroborated this sequence of events and showed that Alice Wilcox stated to Thelma Stewart and Mary Alice Parker just before she was shot that "she was not going to run anymore.”

Wilcox testified in his own defense claiming accident and stating his finger was not within the trigger guard and the gun just went off twice while he was locked in the arms of his wife. He stated further Emory Smith was advancing on him with a pistol and he was trying to free himself from his wife when the gun accidentally discharged.

The evidence is sufficient to support the jury’s verdict of guilty. There was no abuse of discretion by the trial judge in denying a motion for new trial on the general grounds. Also we note there is nothing in this record to show that appellant met the statutory requirements for supporting his motion. Code Ann. § 81-1410.

Judgment affirmed.

All the Justices concur.