Waller v. State , 107 Ga. App. 609 ( 1963 )

107 Ga. App. 609 (1963) 131 S.E.2d 111

WALLER
v.
THE STATE.

40023.

Court of Appeals of Georgia.

Decided April 3, 1963. Rehearing Denied April 11, 1963.

Wesley R. Asinof, for plaintiff in error.

William T. Boyd, Solicitor General, Frank S. French, Eugene L. Tiller, contra.

NICHOLS, Presiding Judge.

1. Where a verdict in a criminal case finds the accused guilty of a crime not made in the indictment a motion in arrest of judgment will lie. Spence v. State, 7 Ga. App. 825, 826 (68 S.E. 443).

2. Only the indictment, plea, verdict and judgment may be considered on a motion to arrest a judgment. Pippin v. State, 172 Ga. 224 (1) (157 S.E. 185).

3. "Under an indictment for murder the accused may be convicted of a lower grade of felony, or even a misdemeanor, if the lesser offense is one involved in the homicide and is sufficiently charged in the indictment." Watson v. State, 116 Ga. 607 (4) (43 S.E. 32, 21 LRA (NS) 1).

4. Under an indictment for murder which charges that the accused committed such unlawful act "by shooting" his victim with a pistol a verdict of involuntary manslaughter in the commission of an unlawful act may be authorized by the evidence. See Lee v. State, 74 Ga. App. 212 (39 SE2d 426); Irvin v. State, 9 Ga. App. 865 (1) (72 S.E. 440).

5. If a verdict is authorized under an indictment, in considering a motion to arrest such judgment it will be presumed that the evidence authorized such verdict. Watson v. State, 116 Ga. 607 (6), supra.

6. The trial court did not err in overruling the defendant's motion to arrest the judgment.

Judgment affirmed. Frankum and Jordan, JJ., concur.