Cooper v. State

Birdsong, Judge,

dissenting.

I dissent from the majority’s conclusion that the admittedly inappropriate charge was harmless within the context of the whole charge. The charge as originally given by the trial court clearly informed the jury that involuntary manslaughter occasioned by a simple battery was viewed in the eyes of the law as a misdemeanor. The evidence offered by the defendants presented to the jury the affirmative excuse of defense of another and that though they had participated in the act that brought about the death of the victim, it was only after they sought to act as peacemaker and as a last resort in protection of their friend.

The request for a recharge indicated the jury’s interest in the least serious degree of the crime of homicide and presented the court with their potential concern of a choice of options between an acquittal or rejection of the defense of justification and conviction of a misdemeanor, the crime in its lowest degree. Viewed in this context, the charge of the court informing the jury that involuntary manslaughter was merely a misdemeanor could have caused the jury to choose conviction. We cannot speculate what its choice would have been had the jury clearly been aware that its options were justification or a conviction of the more serious felony.

Where the trial court gives an admittedly incorrect instruction and afterwards gives a further but correct instruction on the same issue but fails to withdraw the incorrect instruction and does not call the jury’s attention to the withdrawal, error results. Because the sentence in this case was based upon a felony conviction in spite of the jury’s apparent belief that no more than a misdemeanor was involved, it is not possible to say that the error was not harmful. Reece v. State, 210 Ga. 578 (2a) (82 SE2d 10). Accordingly, I would reverse this conviction and remand for a trial not infected by such an erroneous charge. See Crosby v. State, 150 Ga. App. 555, 557 (2) (258 SE2d 264).

I respectfully dissent. I am authorized to state that Chief Judge Shulman and Judge Pope join in this dissent.