McBurnett v. State , 206 Ga. 59 ( 1949 )

1. There was evidence, including the defendant's statement, that the defendant left the scene of the killing and remained away from home during the afternoon and night following the killing; that during his absence the officers searched the whole area for some miles surrounding his residence, but were unable to locate him. This evidence was sufficient to authorize the charge on the subject of flight, and special ground 1, complaining of the charge, is without merit.

2. Code § 26-1005 authorizes the jury to add to its verdict of guilty of murder a recommendation of imprisonment for life. This may be done with or without reason. Reed v. State, 197 Ga. 418 (29 S.E.2d 505); Lamar v. State, 199 Ga. 1 (33 S.E.2d 263). The written request to charge on this recommendation declares that it "may be made for any reason the jury may select." In thus requiring the jury to select a reason, the request is not a proper charge. Under the rule that a written request "must be correct and even perfect" (Lewis v. State, 196 Ga. 755 (3), 27 S.E.2d 659), the court did not err in refusing to charge as requested. Special ground 2, complaining of such refusal, is without merit.

3. The 3rd, and final, special ground complains of the charge which instructed the jury that it was responsible for the truth of its verdict, but that it was not responsible for the consequence of that verdict. The charge is a correct one and is not subject to the criticism made. Campbell v. State, 202 Ga. 705 (44 S.E.2d 903). This ground is without merit.

4. The State proved by eyewitnesses that the defendant shot and killed Horace Williamon, in the manner charged in the indictment, without provocation or mitigating circumstances. This evidence authorized the verdict of guilty of murder. The general grounds of the motion for new trial are without merit.

The court did not err in overruling the motion for new trial as amended.

Judgment affirmed. All the Justices concur.

No. 16814. OCTOBER 11, 1949.