Solesbee, alias Bush, v. The State

Supreme Court of Georgia1948-07-13No. No. 16272

204 Ga. 16

Summary · law.co

Holding. The conviction for murder is affirmed. The trial court properly refused to instruct the jury on accidental homicide, and any error in instructing on justifiable homicide was harmless because it was favorable to the defendant rather than prejudicial.

A defendant convicted of murder challenged the conviction on multiple grounds. The evidence showed that while attempting to rob a motorist of his automobile, the defendant pointed a loaded pistol at the victim and forced him to lie face-down on the ground. When the defendant tried to bind the victim's hands, the victim kicked him in the stomach, causing the pistol to discharge and fatally wound the victim in the back of the head. The defendant's signed statement supported the murder conviction.

The defendant raised several objections to the trial court's jury instructions. He argued that the instruction on justifiable homicide was improper and prejudicial, that the court should have charged the jury on accidental homicide under the applicable statute, and that various other instructions about witness credibility and evidence were flawed. The appellate court rejected each of these contentions, finding them either unsupported by the evidence or harmless to the defendant's case.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether evidence supported a murder conviction in a killing occurring during an armed robbery
Whether instruction on justifiable homicide was proper when evidence did not support it
Whether the trial court erred in failing to instruct on accidental homicide when death resulted from an unlawful act

Procedural posture

The defendant appealed his murder conviction by raising multiple special grounds challenging the trial court's jury instructions.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Duckworth, Presiding Justice.

1. The verdict convicting the accused of murder is supported by the evidence, which includes a signed statement made by the accused, showing that the killing resulted while the defendant was in the execution of his plan to rob the deceased of his automobile. As a means of effectuating the robbery, the accused pointed a loaded pistol at and required the deceased to lie on his stomach upon the ground and place his hands behind him. Then as the accused started to fasten the hands of the deceased, the deceased kicked him in the stomach and the pistol was discharged, the bullet penetrating the back of the head of the deceased and producing his death. The general grounds of the motion for new trial are without merit.

2. Special grounds 3 and 4 complain of excerpts from the charge on justifiable homicide. It is contended that there was no evidence to authorize the charge, and that it was confusing and prejudicial. Assuming that the evidence did not authorize this charge, it was in that event more favorable to the -accused than he was entitled to have given. He was not harmed thereby, and this is not ground for reversal. Dill v. State, 106 Ga. 683 (4) (32 S. E. 660); Norton v. State, 137 Ga. 842 (74 S. E. 759); Geer v. State, 184 Ga. 805 (1) (193 S. E. 776); Jones v. State, 197 Ga. 604 (4) (30 S. E. 2d, 192).

3. Special ground 7 excepts to the failure to charge the law of accident as embraced in the Code, § 26-404, it being contended that the accused did not intend to kill the deceased.- Appropriate language dealing with similar facts is found in Russell v. State, 196 Ga. 275, 287 (26 S. E. 2d, 528), where it is said: “Under all the evidence and the defendant’s statement, the killing occurred in connection with and as one of the incidental probable consequences’ of the robbery in which the defendant was at the time engaged. His own statement was that the deceased waq shot in struggling over the gun while he was trying to tie him up so that the defendant could get away.” It was there held that the court did not err in failing to charge the Code, § 26-404. “It has been held that where the homicide is from culpable neglect or the result of an unlawful act, the defense of accidental homicide is not involved. Pool v. State, 87 Ga. 526 (13 S. E. 556); Allen v. State, 134 Ga. 380 (67 S. E. 1038); Herrington v. State, 31 Ga. App. 167 (120 S. E. 554).” Griffin v. State, 183 Ga. 775, 783 (190 S. E. 2). This ground is without merit.

No. 16272.

July 13, 1948.

Pierce Brothers, for plaintiff in error.

Eugene Cook, Attorney-General, H. W. Nelson, Solicitor-General, and John Sammons Bell, Assistant Attorney-General, contra.

4. The other special grounds, complaining of the charge on the credibility of witnesses, the duty of the jury to reconcile conflicting testimony, defining direct and circumstantial evidence, and instructing the jury as to their right to recommend mercy and explaining that such” a recommendation would mean life imprisonment, are all without merit.

Judgment affirmed.

Jenkins, Chief Justice, Atkinson, Wyatt, Head and Candler, Justices, and Judge Lilly concur.