1. The evidence authorized the verdict.
2. Where a juror is put upon his voir dire and the questions as contained in the Code, § 59-806, are propounded and answered, no additional examination may be had as a matter of right unless the juror is challenged and put upon the trial judge as a trior, though the judge may in his discretion allow additional questions.
(a) The refusal of the court to permit such additional questions is not a denial of due process of law or the equal protection of law under the Fourteenth Amendment to the Constitution of the United States (Code, § 1-815).
3. Where the evidence shows, and it is admitted in the defendant's statement, that the homicide occurred by the discharge of a gun held by the accused and used in an attempt to rob the deceased, even if the discharge of the gun was unintentional, the offense is murder; and in no view of such facts does it involve homicide by accident or involuntary manslaughter.
4. The court did not err in charging the law on confessions.
5. It was not error to fail to charge upon the law of involuntary manslaughter as set forth in the Code, § 26-1009.
No. 15901. SEPTEMBER 5, 1947. Oscar L. Ford, a negro man, was convicted of the murder of Sam A. Bailey and sentenced to electrocution. The case is unusual, in that there is no substantial dispute as to the facts, except upon one question. The homicide occurred while the accused was attempting to rob the deceased. Bailey and his wife operated *Page 600 a store and their dwelling house was about 10 feet from the store. On a Saturday night at about 10 p. m. they closed the store, and upon entering the dwelling the accused, who was standing on the ground at the foot of the porch, said, "drop it." Mr. Bailey at that time held a box containing money and also had a small 410-gauge shotgun with a pistol grip. When this was said Mr. Bailey turned and walked towards the accused and asked him what he said, and the accused again told Mr. Bailey to "drop it." The accused was armed with a single-barrel 12-gauge shotgun, which would not stand cocked and be shot by pulling the trigger, but would shoot only by pulling the hammer back and releasing it. As Mr. Bailey walked towards the accused both guns were discharged. Mr. Bailey was shot in the stomach and died in about 20 minutes. The accused ran off and was arrested the following Monday. He had been wounded by receiving one little shot or little pellet just above the knee.
As to which of the guns fired first is about the only material dispute in the evidence. Witnesses for the State testified that the gun of the accused fired first, while the accused insisted that Mr. Bailey's gun fired first.
Inasmuch as several questions of law are raised by the accused growing out of the firing of the guns, the material portions of a written statement made by him on the Tuesday following the homicide on Saturday night, and also his statement on the trial, are pertinent. The written statement was as follows: "On Saturday night . . I had a 12-gauge shotgun. . . I stood beside Mr. Bailey's house, with the gun loaded, waiting for him. . . Finally Mr. and Mrs. Bailey came up on the front porch. . . I spoke to Mr. Bailey and told him to `drop it.' Mr. Bailey turned and walked towards me and asked me what I said; I again told Mr. Bailey to `drop it.' Mr. Bailey fired at me striking me in the right leg just above the knee. I had my gun cocked and as I was shot I fired my gun. I did not mean to kill Mr. Bailey. . . My intentions were to rob Mr. Bailey but not to kill him. . . I planned and shot Mr. Bailey right by myself. . . I know I have done wrong about trying to rob Mr. Bailey but I did not mean to kill or shoot him." The material portions of the prisoner's statement on the trial were as follows: "I am here to *Page 601 tell that I am guilty of the crime, and I admit that I got the gun and went over there. It was not my intentions to kill Mr. Bailey, or to hurt him in any form or fashion. . . I thought I could scare Mr. Bailey and make him drop the money, but it was not my intention to kill him, or either shoot him. . . I might have had the gun cocked, but now I can't say whether I did or not. But when he hit me, I turned loose and let it fire on him and shot him, . . and I am guilty of the crime." In a supplemental statement, he added: "When I made the statement I was guilty of the crime, I don't mean I was guilty of murder, I say I was guilty of shooting him, but it was not my intention to shoot or hurt him."
The exception is to the overruling of a motion for new trial as amended. 1. The evidence authorized the verdict.
2. In his amended motion the accused contends that the court erred in refusing to permit counsel to propound to the prospective jurors, in addition to the voir dire questions set forth in the Code, § 59-806, the following question: "Were you acquainted with the deceased, Bailey?" Counsel stated at the time that he sought the information to use it in the determination of the twenty challenges allowed the defendant, and not as grounds for the disqualification of jurors. It is contended that the ruling was contrary to law and harmful to the defendant, because: (a) the defendant, being a negro and accused of killing a white man, was entitled to the information sought; (b) his counsel had just recently been appointed by the court to represent him and had no opportunity to make any investigation concerning the jury; and (c) the ruling was in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States, in that it was a denial to the defendant of due process of law and the equal protection of the law. *Page 602
Where a juror is put upon his voir dire and the questions as contained in the Code, § 59-806, are propounded and answered, no additional examination may be had as a matter of right, unless the juror is challenged and put upon the court as a trior, though the trial judge may in his discretion allow additional questions.Herndon v. State, 178 Ga. 832 (2) (174 S.E. 597), and citations. Accordingly, the court did not err in refusing to permit the additional question. Nor did it deprive the accused of due process of law or equal protection of the law. "When a citizen is accorded a trial in a court of justice according to the modes of procedure applicable to all cases of a similar kind, it can not be said that he has been denied `due process of law.'"Arthur v. State, 146 Ga. 827 (1) (92 S.E. 637); Herndon v. State, supra; Hicks v. State, 196 Ga. 671 (3) (27 S.E.2d 307). Neither was he deprived of equal protection of the law, as it is only in cases where laws are applied differently to different persons under the same or similar circumstances that equal protection of the law is denied. Baugh v. LaGrange,161 Ga. 80 (2a) (130 S.E. 69), and citations.
3. Under three grounds of the amended motion, error is alleged in the failure of the court to give certain requests to charge; each being predicated upon the idea that, if the homicide was caused by the accidental, inadvertent, or unintentional discharge of the gun, then the accused would not be guilty of murder.
Assuming that the requests to charge were correct statements of the law, they were not applicable to the instant case. Under the evidence produced by the State and also in the defendant's statement, it is clear and undisputed that at the time the gun was discharged the accused was in the act of using it in attempting to commit the crime of robbery upon the deceased. Even though the gun was defective and would shoot only by pulling the hammer back and releasing it, yet where the accused had the gun pointed at the deceased with the hammer held back in an attempt to commit the offense of robbery, and the gun was discharged unintentionally or accidentally on account of the accused being shot in the leg, the homicide would be murder and not an accident or involuntary manslaughter.
Under the Code. § 26-404, the defense of accidental homicide is not applicable where the undisputed evidence and the defendant's *Page 603 statement show that there was evil design, intention, or culpable neglect. Pool v. State, 87 Ga. 526 (5) (13 S.E. 556);Griffin v. State, 183 Ga. 775, 783 (190 S.E. 2). Nor would the offense of involuntary manslaughter under the Code, § 26-1009, be involved where the killing "shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary." Here it is admitted that the homicide was committed in the prosecution of an assault with intent to rob as defined in the Code, § 26-1405, which is a crime punishable, under § 26-1406, by confinement in the penitentiary.
Where, as in the instant case, it is shown by the evidence, and admitted in the defendant's statement, that the homicide occurred by the discharge of a gun held by the accused and used in an attempt to rob the deceased, even if the discharge of the gun was unintentional, the offense is murder; and in no view of such facts does it involve homicide by accident, or involuntary manslaughter. Accordingly, the court properly declined to give the requested charges. Epps v. State, 19 Ga. 102 (5);Parker v. State, 197 Ga. 340 (7) (29 S.E.2d 61).
4. Applying the ruling made in the third division of this opinion, the written statement made by the accused was a confession and not a mere incriminatory admission, and the court did not err in charging the law on confessions.
5. In accordance with the ruling in the third division of this opinion, the court did not err in failing to charge the law of involuntary manslaughter as contained in the Code, § 26-1009.
Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.