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BANKE, Chief Judge.
Voluntary manslaughter. Clarke Superior Court. Before Judge Barrow.
The defendant was indicted for murder and found guilty of voluntary manslaughter based on evidence that she killed her husband by hitting him repeatedly with a cooking pot. The defendant testified that her husband had attacked her with a chair and that, fearing for her life, she had hit him with the pot to defend herself. Her sole enumeration of error on appeal is directed to the court's refusal to give her requested charge on involuntary manslaughter based on the commission of a lawful act in an unlawful manner. See OCGA 16-5-3 (b). Held:
"[A] defendant who seeks to justify homicide under the 'self-defense' statute, OCGA 16-3-21 . . . , is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, (OCGA 16-5-3 (b)) . . . whatever the implement of death. For if he is justified in killing under OCGA 16-3-21 . . . , he is guilty of no crime at all. If he is not so justified, the homicide does not fall within the 'lawful act' predicate of OCGA 16-5-3 (b) . . . , for the jury, in rejecting his claim of justification, has of necessity determined thereby that the act is not lawful." Saylors v. State, 251 Ga. 735, 737 (309 SE2d 796) (1983). It follows that the trial court did not err in refusing to give the requested charge.
BENHAM, Judge, concurring specially.
I agree wholeheartedly with the majority opinion, and I write separately merely to shed light on the instrumentality of death issue.
Harry N. Gordon, District Attorney, B. Thomas Cook, Assistant District Attorney, for appellee.
Timothy W. Floyd, for appellant.
Thursday May 21 17:25 EDT

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