Wheeler v. State , 229 Ga. 617 ( 1972 )

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229 Ga. 617 (1972) 193 S.E.2d 814
WHEELER
v.
THE STATE.
27434.
Supreme Court of Georgia.
Submitted September 13, 1972. Decided October 10, 1972.
Glenn Zell, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Joel M. Feldman, Morris H. Rosenberg, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant Attorney General, Frank M. Palmour, Deputy Assistant Attorney General, for appellee.

NICHOLS, Justice.

The defendant was convicted of the murder of a six-year-old child and sentenced to life imprisonment. Thereafter, a motion for new trial was filed, amended and overruled and the present appeal filed. The jury was instructed as to murder and involuntary manslaughter, *618 but was not instructed as to voluntary manslaughter. It is the failure of the trial court to instruct as to voluntary manslaughter that forms the basis of this appeal.

The evidence for the State disclosed a case where the child had been brutally beaten several times by the defendant over a three- to four-hour period, that he suffered multiple injuries which caused his death, and there was no evidence of the child having been struck by anyone else. There was also evidence that the defendant had consumed several cans of beer over this period of time. The defendant made an unsworn statement in which he admitted having struck the child with a belt and a stick on other occasions, but denied that he struck the child on the night in question. According to the defendant the child suffered an epileptic seizure and fell in the bathroom causing any injuries which he suffered. Held:

Under the evidence adduced by the State, the defendant was guilty of murder while under the version of the case given by the defendant in his unsworn statement he was not guilty of any offense. Under such circumstances a charge on voluntary manslaughter was neither demanded nor authorized, and the failure to instruct the jury on such subject was not error. See Fisher v. State, 228 Ga. 100 (184 SE2d 156).

Judgment affirmed. All the Justices concur.