Stewart v. State

Hunt, Justice,

dissenting.

I disagree with the majority holding in Division 5 and would reverse because I believe a charge on voluntary manslaughter was required in this case. We have repeatedly held that only slight evidence is necessary to entitle a defendant to such a charge. Washington v. State, 249 Ga. 728, 730 (3) (292 SE2d 836) (1982); Raines v. State, 247 Ga. 504, 506 (1) (277 SE2d 47) (1981); Henderson v. State, 234 Ga. 827, 831 (2) (218 SE2d 612) (1975). Here, the defendant’s testimony that the victim knocked down a person walking just in front of the defendant, threatened to kill the defendant, and then struck the defendant in the head immediately before the defendant killed the victim, is at least slight evidence of serious provocation and presents a jury question on the issue of voluntary manslaughter. This is true notwithstanding the defendant’s additional testimony that he acted not out of anger but in self-defense. We have long held that even where the defendant’s testimony may exclude voluntary manslaughter as a verdict, such a charge is required where it is authorized by the evidence as a whole. Washington, supra; Raines, supra; Henderson, supra. Saylors v. State, 251 Ga. 735 (2) (309 SE2d 796) (1983), is cited by the majority for the proposition that where a defendant unequivocally states that he acts only from self-defense and not from anger, he is not entitled to a manslaughter charge. In my judgment, such a rule should not apply where the evidence is in conflict concerning the extent of provocation and passion.¹ Here, such a conflict existed, slight evidence of provocation and passion was present, and the charge on voluntary manslaughter should have been given.

I am authorized to state that Presiding Justice Clarke joins in this dissent.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, Michael J. Bowers, Attorney General, Dennis R. Dunn, Assistant Attorney General, for appellee.

1 Unlike an affirmative defense, the concept of voluntary manslaughter as a defense to a murder charge, is not necessarily predicated upon the defendant’s version of the crime. He may assert inconsistent defenses. The jury may reject his claim of self-defense, of accident, of lack of anger or fear, and yet properly conclude that the crime was actuated by passion or excitement rather than by malice. The result — a determination that the killing was deliberate, but neither justifiable nor malicious — is a verdict of voluntary manslaughter.