Roberts v. State

Carley, Judge,

dissenting.

I respectfully dissent from the majority’s ruling that, under the facts of this particular case, the refusal of the trial court to charge on involuntary manslaughter was not error. I don’t believe that there is any doubt that a charge on involuntary manslaughter was authorized under the evidence in this case and if a request had been made, it is my opinion that it would have been error to fail to so charge. There was no request and the majority relies upon State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976). However, there is an added dimension in this case which is not present in Stonaker and its progeny, to wit: the request of the jury that it be instructed on the difference between voluntary and involuntary manslaughter. The trial court did not respond to this request. The defendant then specifically objected to the trial court’s refusal to instruct as to involuntary manslaughter in accordance with the jury’s request. In this state, “the jury shall be the judges of the law and the facts in the trial of all criminal cases . . .” OCGA § 17-9-2 (Code Ann. § 27-2301). It is true that the jury must apply the law as given to it in charge by the court. Harris v. State, 190 Ga. 258, 263 (9 SE2d 183) (1940). See also Bryant v. State, 163 Ga. App. 872 (296 SE2d 168) (1982). However, upon request the jury should be entitled to receive all of the law applicable to the case. See Edwards v. State, 233 Ga. 625, 626 (212 SE2d 802) (1975). In the instant case, the trial judge refused to respond to the jury’s request for additional instructions as to principles of law applicable to the case and, in my opinion, this refusal constitutes reversible error. I am *882authorized to state that Presiding Judge Shulman joins in this dissent.