McDonald v. State , 182 Ga. App. 509 ( 1987 )

Beasley, Judge,

dissenting.

I must dissent because I cannot concur with the final conclusion drawn in Division 1 of the opinion. Having listened to the tape as best I could from the perspective and in the circumstances of the defendant, I cannot say it was harmless error as a matter of law. The issue was, what was on defendant’s mind when Givens lunged at him, considering their relationship, past events, and the recent tape? The latter was a part of the basis which defendant says influenced his action.

It is the jury’s province, not the court’s, to determine if, considering all of the circumstances, a reasonable fear was justified, as claimed. York v. State, 226 Ga. 281 (174 SE2d 418) (1970). See also the clear and well-stated instruction of the Supreme Court in this regard in Milton v. State, 245 Ga. 20, 25 (262 SE2d 789) (1980).

I am authorized to state that Judge Sognier joins in this dissent.

Decided March 20, 1987 Rehearing denied April 3, 1987 Frank K. Martin, for appellant. William J. Smith, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.