Manness v. State

213 S.E.2d 138, 134 Ga. App. 111, 1975 Ga. App. LEXIS 1924

Opinions

Deen, Presiding Judge.

The defendant contended in his unsworn statement that, when he went to the victim’s apartment, it was only to remonstrate about the treatment he claimed was given one of his children, and that he happened to have a pistol in his hand only by chance and did not realize he was carrying it, and that the victim advanced against him and that he then retreated. "When I backed up I was under the steps, I couldn’t go nowhere. I threw my hands up, the gun went off, and Buddy staggered back.” This statement was contradicted by three witnesses who testified that the defendant in fact entered the victim’s apartment, cursed and threatened him, and eventually shot him in the throat. Held:

1. The general grounds of the motion for new trial are without merit.

2. Where one of the defenses urged is supported only by the defendant’s unsworn statement, and there is no request to instruct the jury on the law of such defense, failure to so charge is not reversible error. Huff v. State, 113 Ga. App. 257 (147 SE2d 840); Ivey v. State, 118 Ga. App. 406 (163 SE2d 843); Washington v. State, 126 Ga. App. 396 (190 SE2d 821); Whisman v. State, 221 Ga. 460 (145 SE2d 499); Brawner v. State, 221 Ga. 680 (146 SE2d 737); Stevens v. State, 228 Ga. 621 (187 SE2d 281).

Submitted January 14, 1975 Decided February 3, 1975 Rehearing denied February 25,1975 Downey, Cleveland & Moore, John H. Moore, for appellant. George W. Darden, District Attorney, B. Wayne Phillips, for appellee.

Judgment affirmed.

Evans and Stolz, JJ., concur.