Abner v. State , 233 Ga. 922 ( 1975 )

Per curiam.

This is an appeal from a murder conviction and a life sentence. The appellant fatally wounded his wife with a shotgun after a quarrel; he defended on the theory of accident; but the jury found against him. There is no question as to the sufficiency of the evidence to sustain the conviction, and the only issues on appeal involve instructions to the jury.

Appellant argues that the evidence required a charge, though not requested, on the issue of involuntary manslaughter in the commission of an unlawful act other than a felony. The appellant defended solely on the theory of accident, and having reviewed the evidence, we conclude that the failure to charge on involuntary manslaughter was not erroneous. See Bonds v. State, 232 Ga. 694 (208 SE2d 561) (1974); Almond v. State, 230 Ga. 31 (195 SE2d 431) (1973); and Meadows v. State, 230 Ga. 471 (197 SE2d 698) (1973).

The appellant argues that the charge of the court on accident was burden-shifting, confusing to the jury, and erroneous. Complaint is made about the two following portions of the charge: "The law presumes every intentional homicide to be malicious unless the contrary appears from circumstances of alleviation, justification, mitigation or excuse, or unless it appears, from misfortune or accident. The defendant is required whenever an intentional homicide has been proven to have been committed by the defendant, to show such circumstances to the satisfaction of you, the jury, unless such circumstances appear from evidence produced against the defendant. When, and if a killing is proved to your satisfaction and beyond a reasonable doubt, to be the intentional act of a defendant, the presumption of innocence with which he enters upon the trial, is removed from him and the defendant must show to your satisfaction, facts that justify or mitigate the homicide or facts showing misfortune or accident, unless the evidence introduced against the defendant show such facts. But as I have charged you heretofore, the presence of justification, mitigation or misfortune or accident may be found in any of the evidence produced against him. If there be no evidence produced or introduced to show misfortune or accident, and if the evidence introduced show the homicide to have been committed as charged in the indictment, then the defendant must show to your satisfaction that it was the result of misfortune or accident.”

Argued November 13, 1974 Decided February 25, 1975 Rehearing denied March 12, 1975. Hudson & Montgomery, Jim Hudson, Davis, Davidson & Hopkins, Jack Davidson, for appellant. Cíete D. Johnson, District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellee.

We hold that the complaint made about the charge is without merit. Language substantially the same as that complained of here has been approved by this court. See Hewell v. State, 232 Ga. 175 (205 SE2d 216); Fisher v. State, 228 Ga. 100 (184 SE2d 156); Williams v. Johnson, 225 Ga. 654 (171 SE2d 145); Smith v. State, 203 Ga. 317 (46 SE2d 583).

Judgment affirmed.

All the Justices concur, except Gunter, J., who dissents.