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Witt v. State

200 S.E.2d 112, 231 Ga. 4, 1973 Ga. LEXIS 567
CourtSupreme Court of Georgia
DecidedSeptember 6, 1973
Docket28001
StatusPublished
Cited by21 cases

This text of 200 S.E.2d 112 (Witt 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
Witt v. State, 200 S.E.2d 112, 231 Ga. 4, 1973 Ga. LEXIS 567 (Ga. 1973).

Opinion

Mobley, Chief Justice.

Larry Witt was indicted for murder and convicted of voluntary manslaughter. His conviction was affirmed by the Court of Appeals. Witt v. State, 128 Ga. App. 645 (197 SE2d 401). This court granted certiorari to review a ruling by the Court of Appeals in regard to the charge to the jury.

In the fourth division of its opinion the Court of Appeals quoted from Waller v. State, 102 Ga. 684 (1) (28 SE 284), where it was held that it was "erroneous to sum up the contentions of the accused, the same, if true, making a clear case of justifiable homicide, without distinctly informing the jury that if the accused were justifiable in his act, he should be acquitted.” The Court of Appeals then stated that it felt that "under the charge as a whole the jury must fully have understood that, if it found the defendant justified, it could not return a guilty verdict,” and held that the error in failing to charge this principle of law was harmless.

The evidence for the accused and his statement required a charge on justifiable homicide on the theory of self-defense. Under the new criminal code (Code Ann. § 26-902; Ga. L. 1968, pp. 1249, 1272), as under the former law (Code of 1933, § 26-1017), justifiable homicide is a substantive, affirmative defense.

“Justifiable homicide is a substantive and affirmative defense; and where such defense is in issue and the court does not specifically, or in general terms, inform the jury that, if they should believe the defendant justified, it would be their duty to acquit him, a new trial must be granted.” Boyd v. State, 207 Ga. 567 (3) (63 SE2d 394); Fountain v. State, 207 Ga. 144 (3) (60 SE2d 433); Spencer v. State, 215 Ga. 183 (1) (109 SE2d 588).

The Court of Appeals erred in holding that it was harmless error in the present case to fail to charge that it was the duty of the jury to acquit if they believed that the accused was justified.

Judgment reversed.

All the Justices concur. *5 Robert E. Andrews, for appellant. Jeff C. Wayne, District Attorney, for appellee.

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Bluebook (online)
200 S.E.2d 112, 231 Ga. 4, 1973 Ga. LEXIS 567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witt-v-state-ga-1973.