OGLETREE v. THE STATE., 209 Ga. 413, 73 S.E.2.d 201 (1952)
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Summary
Judgment affirmed. All the Justices concur, except Wyatt, J., who dissents from the rulings in divisions 2 and 5.
Summary
Judgment affirmed. All the Justices concur, except Wyatt, J., who dissents from the rulings in divisions 2 and 5.
Text
Reuben A. Garland and Marvin O'Neal Jr., for plaintiff in error.
1. The defendant was indicted by a grand jury in the Superior Court of Monroe County for the murder of James William Bell and, upon his conviction of that offense without any recommendation, was sentenced to be electrocuted. The verdict, as the record shows, is amply supported by evidence and has the approval of the trial judge; this being true, the general grounds of the motion for new trial are without merit.
2. The court charged: "Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection." In addition to this, the accused, in writing, requested the following charge: "If the homicide was unlawful and, if there was no intent to kill and no malice, and it was without any mixture of deliberation whatever, but was in the commission of an unlawful act, the offense would be involuntary manslaughter in the commission of an unlawful act." It is alleged in special ground 1 of the motion for new trial that the court erred in failing to give the requested charge, since it was fully authorized by the defendant's statement. There is no merit in this. The requested charge is not adjusted to the evidence. It is not alleged in the motion for new trial, or otherwise shown by the record, that the request was made, as required by the statute and the decisions of this court, before the jury retired to consider the case; and such allegation being necessary, this ground of the motion is incomplete and accordingly shows no error. See Brooks v. State, 207 Ga. 620 (2) (63 S. E. 2d, 358). Applying this rule in this case, the failure to charge upon the defendant's theory of accidental homicide was not error. No request was made for such an instruction, and the evidence did not require or authorize it. See Webb v. State,
6. The judgment complained of is not erroneous for any reason assigned.
Ben B. Garland, Solicitor-General, A. M. Zellner, Hugh D. Sosebee, Eugene Cook, Attorney-General, and Rubye G. Jackson, contra.
1952
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