Opinion
69375.
DECIDED NOVEMBER 13, 1984.
Voluntary manslaughter. Stephens Superior Court. Before Judge Gunter.
Dan T. Pressley, Sr., for appellant.
V. D. Stockton, District Attorney, Michael H. Crawford, Assistant District Attorney, for appellee.
The appellant was indicated for murder and found guilty of voluntary manslaughter in the shooting death of Tommy Fowler. On appeal, he contends that the jury's verdict was unauthorized because "[t]he only evidence showed an apparent necessity to shoot to save his own life." He further contends that the trial court erred in charging on voluntary manslaughter and in failing to charge on involuntary manslaughter.
The appellant admitted shooting Fowler but maintained that he had done so because Fowler was hitting him about the face and head with a shotgun. His testimony was initially conflicting on the issue of whether he had shot in self-defense or whether his pistol had discharged accidentally. In response to further questioning by his own counsel designed to clear up this confusion, the appellant testified as follows:
"Q. Now a little bit ago you were trying to tell us it was self-defense, which is it?
A. Well, I mean you know.
Q. Was you trying to keep him off of you?
A. Yeah I was Dan.
Q. Did you shoot him to keep him off of you?
A. No, I didn't shoot him to keep me off of you, I told you I got the gun and told Tommy not to hit me with the shotgun no more Dan and he hit me anyway and the pain caused me to pull to shoot the gun, I didn't shoot the gun to kill Tommy that's all there are to it. I got the gun out to stop him that's what I got it for, not to hit me anymore that's what I got the gun out for.
Q. You got it out for what?
A. To stop him from hitting me.
Q. Okay you got it out in self-defense?
A. That's right, that's what I got the gun out for, other than that I would have left the gun in my pocket never would knowed it would have been there.
Q. So you don't know whether it was an accident or self-defense?
A. I don't when he hit me in the face, I had that gun pointed at him and he hit me and I pulled the trigger I reckon now that's just the way it is Dan, that's all I can say.
Q. What you are saying is you didn't mean to kill him?
A. No I wouldn't have killed him for nothing in the world the truth about that now, that's for sure." Held:
1. Any rational trier of fact could have concluded beyond a reasonable doubt from the evidence presented at trial that the appellant was guilty of voluntary manslaughter. See generally OCGA § 16-5-2. It necessarily follows that the trial court did not err in charging the jury on voluntary manslaughter.
2. The evidence did not warrant a charge on involuntary manslaughter as a lesser included offense. While claiming to have acted in self-defense and without any intent to kill, the appellant admitted taking the pistol out of his pocket, pointing it at the victim, and pulling the trigger. If the shooting was justifiable, then he committed no criminal act at all, thereby precluding a charge on manslaughter in the commission of a lawful act. See Crawford v. State, 245 Ga. 89 (3) ( 263 S.E.2d 131) (1980); Saylors v. State, 251 Ga. 735, 737 ( 309 S.E.2d 796) (1983). On the other hand, if the shooting was not justifiable, then the homicide occurred as the result of a felonious assault with a deadly weapon, thereby precluding a charge on manslaughter in the commission of an unlawful act not a felony. Accord Richardson v. State, 250 Ga. 506 (3) ( 299 S.E.2d 715) (1983); Dollar v. State, 168 Ga. App. 726 (3) ( 310 S.E.2d 236) (1983). In any event, the appellant did not request a charge on involuntary manslaughter, and it is well settled that a charge on a lesser included offense is not required in the absence of a written request. See Buxton v. State, 253 Ga. 137 (5) ( 317 S.E.2d 538) (1984); Roberts v. State, 169 Ga. App. 880 ( 315 S.E.2d 430) (1984). See generally State v. Stonaker, 236 Ga. 1 ( 222 S.E.2d 354) (1976).
Judgment affirmed. Pope and Benham, JJ., concur.