Timmons v. State

223 Ga. 450 (1967) 156 S.E.2d 68

TIMMONS
v.
THE STATE.

24107.

Supreme Court of Georgia.

Submitted June 12, 1967. Decided June 22, 1967. Rehearing Denied July 6, 1967.

Casey Thigpen, for appellant.

Walter C. McMillan, Jr., Solicitor General, Dan L. Lanier, Solicitor General, Arthur K. Bolton, Attorney General, Marion O. Gordon, Assistant Attorney General, Mathew Robins, Deputy Assistant Attorney General, for appellee.

ALMAND, Presiding Justice.

Under an indictment charging him with the unlawful killing of William Dozier by cutting, stabbing and wounding, the appellant Robert Timmons was found guilty of the offense of murder without a recommendation of mercy. The appeal seeks to set aside the verdict and sentence on three grounds: (1) Appellant was tried by eleven jurors, (2) The court failed to charge the law of mutual combat, and (3) Appellant, a prisoner in a state work camp at the time of his trial, was brought into court in prison uniform. Held:

1. We deal with grounds 1 and 3 together. The record discloses that after a jury of twelve had been selected one juror was excused and counsel for appellant agreed that the trial could proceed with eleven jurors. Further, the record discloses that appellant's counsel agreed that appellant be permitted to wear his prison uniform in court during his trial. A person may waive or renounce what the law has established in his favor. Code § 102-106; Bradford v. Mills, 208 Ga. 198 (1) (66 SE2d 58); Weiss v. Hood, 200 Ga. 795 (2) (38 SE2d 559), cert. denied, 329 U.S. 759 (waiver of right to trial by 12 jurors); McKibben v. State, 187 Ga. 651 (4) (2 SE2d 101). Grounds 1 and 3 are without merit.

2. The court did not err in failing to charge the law relating to mutual combat or mutual intention to fight. The court charged the law of voluntary manslaughter, but there was no evidence of a mutual intention to fight. Therefore, the court was not required to charge on the theory of mutual combat.

3. Though the appellant does not contend that his conviction was contrary to the evidence, we have reviewed the record and find that the verdict is fully supported by the evidence.

Judgment affirmed. All the Justices concur.