Summary
holding that the trial court was not required to give an accident instruction where the defendant said pre-trial that he aimed a loaded gun at the victim's face to show her what “being under the gun” was like, but then testified at trial that while sitting next to the victim, he pulled a loaded gun across his lap, planning to show her what “being under the gun was like,” and the gun went off when he was putting it in his hand, because under both scenarios, the defendant showed an utter disregard for the victim's safety which was criminally negligent
Summary of this case from Westbrook v. StateOpinion
S91A1353.
DECIDED NOVEMBER 1, 1991.
Murder. Murray Superior Court. Before Judge Boyett.
Ralph M. Hinman III, for appellant.
Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, Michael J. Bowers, Attorney General, Robert D. McCullers, for appellee.
James Phillip Stewart shot and killed his girl friend, Freda Mae Hedden, with a handgun. A jury convicted him of malice murder, and the judge sentenced him to life imprisonment. We affirm.
The homicide occurred on August 18, 1990, and Stewart was indicted on September 14, 1990. The jury found him guilty and the judge sentenced him on October 9, 1990. Stewart filed his motion for a new trial on November 2, 1990, which was denied on April 3, 1991. Stewart filed a timely notice of appeal on June 28, 1991. The appeal was docketed on July 16, 1991, and the case was submitted for decision without oral argument on August 30, 1991.
1. Reviewing the evidence in the light most favorable to the jury's verdict, we hold that a rational trier of fact could have found Stewart guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 2781, 61 L.Ed.2d 560) (1979).
2. In addition, the evidence did not require the trial judge to give a jury charge on the defense of accident. In his taped police statement that was played at trial, Stewart said that he aimed a loaded gun at Hedden's face to show her what being under the gun was and that he evidently pulled back the hammer. He testified at trial that he planned to show her what being under the gun was like, pulled a loaded gun across his lap while seated next to her on the couch, and was putting the gun in his hand when it went off. Stewart admitted that his trial testimony did not "sound reasonable" based on the pathologist's testimony that the bullet entered Hedden's mouth and traveled through her head almost parallel to the ground. Under either scenario, Stewart showed utter disregard for Hedden's safety and criminal negligence that precluded a charge on accident. See New v. State, 260 Ga. 441, 442 ( 396 S.E.2d 486) (1990); OCGA § 16-2-2.
Judgment affirmed. All the Justices concur.