Lavender v. State ( 1975 )

Hall, Justice.

This is an out-of-time appeal granted by the superior court pursuant to an order of the United States District Court, Northern District of Georgia, dated January 10, 1975, from Lavender’s 1968 murder conviction. The law applicable to this appeal pre-dates the Criminal Code of 1968.

While the evidence is in conflict, there is evidence to show that the defendant had been drinking and was found sleeping on a couch in a tavern about 1:30 a.m. The manager of the tavern awakened the defendant and walked with him to the door. The defendant was then using profanity, and a few minutes later re-entered the tavern with a pistol and started shooting. The manager attempted to run, tripped and fell. Defendant came over and shot him in the head. When apprehended, defendant inquired of the manager’s condition and was told that he was alive. The defendant replied, "I am sorry the son-of-a-bitch is not dead.” The victim died later that morning from the gunshot wound in the head. Lavender’s unsworn statement put forward his claim that the shooting followed a "scuffle” and was justifiable homicide.

1. Defendant’s enumeration of error number 2 that "The court erred in charging the jury as to a felonious killing” is without merit insofar as it alleges that a portion of the charge was argumentative and burden shifting. Abner v. State, 233 Ga. 922 (213 SE2d 851); Hewell v. State, 232 Ga. 175 (205 SE2d 216); Kramer v. State, 230 Ga. 855 (199 SE2d 805). The additional language of the charge was not subject to the construction Lavender seeks to place on it: the jury were not erroneously told that "absolute necessity” for the killing must appear in order to authorize a finding of justifiable homicide.

2. In enumeration of error number 3, defendant asserts that "the court erred in charging the jury as to justifiable homicide,” because the jury were never told in general or specific terms that if they found the homicide justifiable it would be their duty to acquit.

Initially, we note that defense counsel at trial made no objection to this portion of the charge. Although the law is different at present (see Ga. L. 1968, pp. 1072,1078; Code Ann. § 70-207)), Lavender’s trial on May 20 and 21, 1968, was subject to 1966 Ga. L. p. 493,498, which applied prior to the effective date of the 1968 amendment. Sims v. State, 234 Ga. 177. Under the 1966 Act, which comported with the present American Bar Association Standards Relating to the Administration of Criminal Justice, Jury Instructions 4.6 p. 329-330, and Rule 30 of the Federal Rules of Criminal Procedure, Lavender’s present complaint concerning the charge would be barred because no objection was made at trial, unless this court, under Section (c) of the Act (Code Ann. § 70-207(c)) should find that the charge was harmful as a matter of law, i.e., that it was blatantly prejudicial or resulted in a gross miscarriage of justice. As we note below, we do not so find, and therefore Lavender’s claim on this point is not entitled to be considered on the merits. Nonetheless, we will consider it because it invokes Witt v. State, 231 Ga. 4 (200 SE2d 112), which we conclude must be overruled.

In the Witt case, the Court of Appeals had affirmed Witt’s conviction finding that "under the charge as a whole the jury must fully have understood that, if it found the defendant justified, it could not return a guilty verdict.” This court on certiorari reversed, reiterating that justifiable homicide is a substantive defense and must be charged as such. In the case before us, there was no wording in the charge such as Witt required, and if Witt controls, Lavender’s conviction must be reversed. We conclude, however, that our Witt decision was erroneous. The charge here, when read in its entirety, clearly informs the jury that in order to convict they must find the defendant guilty beyond a reasonable doubt of an unjustified, unmitigated killing; and they were further instructed on the principles of defendant’s theory of the case which would constitute justification. The jury has a duty to acquit whenever the state has failed to make out its complete case. It was not necessary for the jury to find the defendant justified in order to have a duty to acquit him, and it is not necessary for the court to give them such a redundant instruction. Moreover, such a charge might erroneously lead the jury to conclude that their duty to acquit was limited by the instruction on justifiable homicide. We conclude that the charge given here was not erroneous. Witt v. State, supra; Spencer v. State, 215 Ga. 183 (1) (109 SE2d 588); Boyd v. State, 207 Ga. 567 (3) (63 SE2d 394); Fountain v. State, 207 Ga. 144 (3) (60 SE2d 433) and Waller v. State, 102 Ga. 684 (1) (28 SE 284) are overruled and will not be followed hereafter.

3. The charge on murder taken together with the entire charge was not misleading or argumentative. Enumeration of error number 4 is without merit. Ellard v. State, 233 Ga. 640 (212 SE2d 816); Thomas v. State, 95 Ga. 484 (3) (22 SE 315).

4. The defendant failed to support enumeration of error number 1 by argument or citation of authority and under Rule 18 (c) (2) of this court the same is abandoned. Roberts v. State, 231 Ga. 395 (2) (202 SE2d 43).

Judgment affirmed.

All the Justices concur, except Gunter and Ingram, JJ., who dissent. Argued May 13, 1975 Decided June 17, 1975. Stone & Pennington, John C. Pennington, K. Reid Berglund, for appellant. Lewis R. Slaton, District Attorney, H. Allen Moye, Assistant District Attorney, Arthur K. Bolton, Attorney General, Kirby G. Atkinson, Assistant Attorney General, for appellee.