Cole v. State , 254 Ga. 286 ( 1985 )

Gregory, Justice,

dissenting.

I dissent as to Division 1 of the majority opinion.

I have no hesitancy to hold that one who kills another to prevent him from using drugs is not justified. That is comparable to the holding in Burger v. State, 238 Ga. 171 (231 SE2d 769) (1977), where it was decided that the act of a husband in killing his wife and her paramour discovered in a compromising setting was not justified. But I am not willing to go further and hold as a matter of law that a stepson, with a history of drug use, who threatens his stepfather with again using drugs never constitutes that provocation which may reduce murder to voluntary manslaughter. OCGA § 16-5-2. It was expressly recognized in Burger, that the paramour situation might constitute provocation. I would hold as much here.

I am authorized to state that Justice Clarke joins in this dissent.