Bishop v. State

356 S.E.2d 503, 257 Ga. 136, 1987 Ga. LEXIS 769
CourtSupreme Court of Georgia
DecidedJune 4, 1987
Docket44313
StatusPublished
Cited by16 cases

This text of 356 S.E.2d 503 (Bishop v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bishop v. State, 356 S.E.2d 503, 257 Ga. 136, 1987 Ga. LEXIS 769 (Ga. 1987).

Opinions

Gregory, Justice.

Robert C. Bishop was convicted of malice murder and sentenced [137]*137to life imprisonment.1 We affirm.

Bishop lived in a trailer park in Coweta County. Because he was concerned about past break-ins to his trailer, he erected a spring gun or trap gun. He positioned a Mauser 8mm high-powered rifle on two chairs with the barrel pointed in the direction of the trailer’s front door. A string attached to the door knob ran over the back of one of the chairs and was connected to the trigger.

Bishop went to work on the night of February 13, 1986 with the spring gun in place. Later, James Freeman, an acquaintance of Bishop, attempted to enter the front door of the trailer. The rifle discharged and hit the metal molding at the foot of the door. Freeman was hit by either a ricocheting bullet fragment or a piece of flying metal. Neighbors heard the shot and found Freeman lying wounded in Bishop’s driveway. The neighbors said the trailer was dark, but that Bishop’s car was in the driveway.

Freeman was taken to a Newnan hospital. The doctor on duty found the projectile had glanced off Freeman’s right thigh and fractured his forearm. Freeman was transferred to an Atlanta hospital, where doctors performed tissue and vascular transplants on the arm using grafts from Freeman’s left leg.

Freeman was released from the hospital two weeks later. The following night, on February 27, 1986, he died. The pathologist performing the autopsy said Freeman died of a pulmonary embolism or blood clot.

Bishop was tried by a jury and found guilty of malice murder.

1. Bishop first contends the trial court erred in denying his motion for directed verdict because the State did not establish all the essential elements of malice murder. In particular, Bishop claims the State did not prove beyond a reasonable doubt that he acted with malice aforethought, either express or implied.

Bishop contends the evidence demonstrated he positioned the rifle to point to the floor in front of the door, and not directly at the door opening with the intent to shoot whoever entered. He contends that by erecting the spring gun in this manner, as if to only scare burglars, he had neither the express malice to kill someone entering the door, nor any implied malice rising from the circumstances of the killing.

The State contends Bishop’s theory rests exclusively on the fact that the bullet hit the door jamb at the base of the door and not Freeman directly. The State argues the evidence concerning the posi[138]*138tioning of the gun in relation to the door can be construed to show the gun was in fact aimed with the intent of shooting whoever entered.

Whichever theory is accepted, it is undisputed that a high-powered rifle was positioned on chairs with the barrel pointed in the direction of the door to be triggered by opening the door. Even if Bishop’s version is accepted as true, the situation nonetheless would present a jury question as to whether the act was such reckless disregard of human life as to be equivalent of a specific intent to kill. “A wanton and reckless state of mind is sometimes the equivalent of a specific intent to kill, and such state of mind may be treated by the jury as amounting to such intention when the wilful and intentional performance of an act is productive of violence resulting in the destruction of human life.” Myrick v. State, 199 Ga. 244, 248 (34 SE2d 36) (1945).

We note that in Myrick the defendant admitted shooting the victim with a rifle fired from a distance of 60 yards. The defendant claimed the victim was trespassing when he aimed the rifle a foot to a foot and a half over the victim’s head to scare him. This court nonetheless found a jury question existed as to whether the act was such a reckless disregard for human life as to be the equivalent of a specific intent to kill even if the defendant’s version of the facts were accepted as true. See also Carrigan v. State, 206 Ga. 707 (58 SE2d 407)-(1950), where the defendant claimed he believed his pistol to be unloaded when he pointed it directly at the victim’s head and pulled the trigger.

We find the trial court did not err in denying the motion for directed verdict since, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Wright v. State, 253 Ga. 1 (1) (316 SE2d 445) (1984); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Bishop also contends erecting the spring gun was not unlawful in his case because the killing of Freeman was justified. He cites OCGA § 16-3-23, which provides: “A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such a threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if: . . . (2) He reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and such force is necessary to prevent the commission of the felony.”

Apparently Bishop’s trailer had been broken into on several occasions. According to Bishop, the evidence indicates Freeman was bur[139]*139glarizing the trailer when he was shot, although the State disputes this. Bishop argues had he been at home in the darkened trailer and Freeman attempted to enter unannounced he could have reasonably believed a felony was being committed upon his habitation and been justified in using deadly force pursuant to § 16-3-23.

The weakness in Bishop’s argument is that he was working and not at home when the spring gun activated. Bishop contends the traditional rule observed in other jurisdictions is that a person is not justified in taking a life indirectly with a mechanical device unless he would have been justified had he been personally present and taken the life with his own hand.

We decline Bishop’s invitation to adopt such a rule in these circumstances. Section 16-3-23 justifies the use of deadly force to protect a habitation only when the inhabitant “reasonably believes” the entry is made for the purpose of committing a felony. We find that under these circumstances, however, it was impossible for Bishop to form a reasonable belief in light of his absence from the trailer. “Allowing persons, at their own risk, to employ deadly mechanical devices imperils the lives of children, firemen and policemen acting within the scope of their employment, and others. Where the actor is present, there is always the possibility he will realize that deadly force is not necessary, but deadly mechanical devices are without mercy or discretion. ... It seems clear that the use of such devices should not be encouraged. Moreover, whatever may be thought in torts, the foregoing rule setting forth an exception to liability for death or injuries inflicted by such devices ‘is inappropriate in penal law for it is obvious it does not prescribe a workable standard of conduct; liability depends upon fortuitous results.’ ” People v. Ceballos, 116 Cal. Rptr. 233 (526 P2d 241, 244-245) (Cal. 1974), quoting Model Penal Code (Tent. Draft No.

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Bishop v. State
356 S.E.2d 503 (Supreme Court of Georgia, 1987)

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Bluebook (online)
356 S.E.2d 503, 257 Ga. 136, 1987 Ga. LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bishop-v-state-ga-1987.