Cooper v. State

306 S.E.2d 709, 167 Ga. App. 440, 1983 Ga. App. LEXIS 2515

• Court: Court of Appeals of Georgia
• Decided: July 13, 1983
• Docket: 65507
• Status: Published

Opinions

McMurray, Presiding Judge.

Defendants were indicted for murder and convicted of involuntary manslaughter in the commission of an unlawful act. Defendants appeal, enumerating error arising from the trial court’s charge to the jury. Held:

Defendant’s sole enumeration of error is “[t]he trial court erred in charging the jury that involuntary manslaughter in this situation was a misdemeanor, without ever correcting the charge to show that the case required a felony conviction by the jury, and after receiving a verdict of involuntary manslaughter, setting a sentence of five years to serve.” The language which defendants contend was harmful error is emphasized in the following excerpt from the trial court’s charge to the jury. “Now, a person commits involuntary manslaughter in the commission of an unlawful act, when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person convicted under this subsection is guilty of a misdemeanor. I therefore charge you simple battery, ladies and gentlemen, is a commission of an unlawful act other than a felony. A person commits simple battery when he either intentionally makes physical contact of an insulting or provoking nature with the person of another, or intentionally causes physical harm to another. A person convicted, ladies and gentlemen, would be convicted under this section on the basis of a simple battery, if any.” (Emphasis supplied.

The “subsection” referred to in the emphasized language is apparently the subsection setting forth involuntary manslaughter in the commission of an unlawful act. See OCGA § 16-5-3 (a) (formerly Code Ann. § 26-1103 (a) (Ga. L. 1968, pp. 1249,1276)), which provides that a person convicted of this offense shall be punished by imprisonment for not less than one year nor more than five years, a felony punishment. The statement to the jury that involuntary manslaughter in the commission of an unlawful act is a misdemeanor was, at that point, inappropriate. However, during its deliberations the jury requested further instructions as to the definition of involuntary manslaughter. The trial court’s recharge, in response to the jurors’ request, was almost verbatim to that previously given, except that the inappropiate language “[a] person convicted under this subsection is guilty of a misdemeanor,” (emphasis supplied) contained in the main charge, was omitted.

Defendants contend that the verdict was a decision by the jury to find them guilty of a misdemeanor. This verdict, defendants argue, reflects “that the jury held that since a party had been killed, that it was not equitable that defendants should go entirely free.”

Decided July 13, 1983. Gaines C. Granade, for appellants. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Margaret V. Lines, Wendy Shoob, Assistant District Attorneys, for appellee.

There is nothing in the record and transcript to indicate that after the court’s recharge there was any confusion in the minds of the jurors as to any of the principles of law involved in the case sub judice. See Horne v. State, 155 Ga. App. 851, 853 (2) (273 SE2d 193). Moreover, it is speculative to surmise that the jury was only finding the defendants guilty of a simple misdemeanor because the jurors felt “it was not equitable that defendants should go entirely free.”

The trial court’s instructions must be considered as a whole and it is most unlikely that the court’s charge to the jury as a whole, including the recharge in the case sub judice, would mislead a jury of ordinary intelligence although part of the charge is inappropriate. See Wood v. State, 243 Ga. 273 (253 SE2d 751); Mathis v. State, 153 Ga. App. 587 (1), 588 (266 SE2d 275); Lister v. State, 143 Ga. App. 483, 485 (5) (238 SE2d 591). See also Gober v. State, 247 Ga. 652, 655 (3) (278 SE2d 386).

Although we have determined that the portion of the trial court’s main charge, that is, “[a] person convicted under this subsection is guilty of a misdemeanor” was inappropriate, we have taken the charge as a whole, including the recharge, and find no reversible error. See Gober v. State, 247 Ga. 652, 655 (3), supra; Hill v. State, 155 Ga. App. 718, 719 (1) (272 SE2d 508).

Judgment affirmed.

Quillian, P. J., and Sognier, J., concur. Deen, P. J., Banke and Carley, JJ., concur specially. Shulman, C. J., Birdsong and Pope, JJ., dissent.