Blount v. State , 147 Ga. App. 742 ( 1978 )

147 Ga. App. 742 (1978) 250 S.E.2d 191

BLOUNT
v.
THE STATE.

56731.

Court of Appeals of Georgia.

Submitted October 4, 1978. Decided October 25, 1978.

George Pennebaker, for appellant.

John T. Perren, District Attorney, for appellee.

DEEN, Presiding Judge.

The defendant was indicted for murder and convicted of voluntary manslaughter. The sole enumeration of error contends that the court failed to charge on request a quotation from Simpson v. State, 12 Ga. App. 292 (4) (77 S.E. 105) (1912) which held it was not error in that case to instruct the jury that if they "are satisfied from the evidence, beyond a reasonable doubt, that the accused is guilty of one of two or more offenses of which the defendant may lawfully be convicted under the indictment against him, but have reasonable doubt as to which of these offenses the defendant is guilty of, it is their duty to give him the benefit of the doubt and find him guilty only of the lower grade of offense."

In addition to a verdict of acquittal the trial judge submitted forms of guilty for all four degrees of homicide, telling the jury that if they had a reasonable doubt of the accused's guilt of murder to "give him the benefit of that doubt" and consider the next degree, voluntary manslaughter and so on down the list; if they had a reasonable doubt as to voluntary manslaughter and involuntary manslaughter in the commission of an unlawful act they would give the accused the benefit of that doubt and consider the commission of a lawful act in an unlawful manner, and so on.

We find no reversible error. Simpson holds merely that it is not error to give the instruction, not that it is error to withhold it. The court emphasized that a reasonable doubt would result in acquittal at each level, and twice told the jury to give the defendant the benefit of that doubt if they had one. This comprises in essence the thought expressed in the Simpson case. A new trial is not required where the charge as given covers substantially the same rules of law. Freeman v. State, 130 Ga. App. 718, 720 (204 SE2d 445) (1974). Only where there is a failure to charge in substance the rule of law which is the subject of the request is a reversal required. Cf. Ray v. Gallant-Belk Co., 147 Ga. App. 580 (4) (1978).

Judgment affirmed. Smith and Banke, JJ., concur.