Sims v. State

Per curiam.

Sims was convicted by a jury of murder and robbery, and appeals. The state’s evidence tended to show that Sims deliberately unbuckled or unsnapped the strap securing the revolver of a security guard standing at a bus stop, stole the gun, ran to a waiting automobile and drove away with two companions one of whom was the driver; and that farther down the street Sims shot and killed an unarmed pursuer who had succeeded in persuading the driver to stop and who was speaking to the occupants of the car, including Sims, as he was shot. In his defense, Sims gave sworn testimony that he and another were playfully shadowboxing on the street while waiting for a friend to drive around the block to pick them up; that Sims stumbled into the security guard whose gun was loosened *178by the impact and fell to the street; that the guard uttered threats causing Sims to fear for his life; that consequently Sims grabbed the gun from the street and fled with it to his friend’s car; that the pursuer who stopped the car was thought by Sims and his two companions to be a detective; and that he knew the man was shot, although he was vague about whether he did the shooting, testifying that "If I did it, I didn’t know nothing about it.”

1. The evidence was sufficient to authorize the jury’s verdict of guilty as charged. Without deciding whether the witness Zachary was or was not an accomplice within the meaning of Code § 38-121 requiring corroboration, we rule that even if he was, the state’s evidence provided sufficient corroboration of his testimony to convict Sims.

2. Sims contends that the trial court erred in failing to instruct the jury on the theory of self-defense.1 After charging the jury, the court asked counsel for appellant and appellee if they had any objections to the charge. Counsel for appellant raised the question of whether a charge on voluntary manslaughter should have been given. When the court asked him if he had any other objections, counsel replied, "That’s all.” The state takes the position that the appellant thus waived any right he might have to object to the failure of the court to charge the law of self-defense.

(a) Under the Appellate Practice Act of 1965 as amended (Ga. L. 1965, p. 18; 1968, pp. 1072, 1078), an appellant in a criminal case may appeal and enumerate *179error on an erroneous charge or on erroneous failure to charge without first raising the issue in the trial court. Spear v. State, 230 Ga. 74 (195 SE2d 397). The benefits of this rule are not deemed waived by defendant even where his counsel states to the trial judge that he has no objection to the charge of the court.

Submitted February 24, 1975 Decided April 17, 1975. McHaney & Lynn, Robert L. McHaney, Jr., for appellant. Lewis R. Slaton, District Attorney, Carole E. Wall, Don Frost, Assistant District Attorneys, Arthur K. Bolton, Attorney General, Lois F. Oakley, Deputy Assistant Attorney General, for appellee.

(b) After a review of the transcript, we are of the opinion that there is no evidence to warrant a charge on justification under Code Ann. § 26-901.

3. The contention that the trial court erred in failing to charge the jury on the law of voluntary manslaughter is without merit for the reason that there is no evidence which would authorize the instruction.

4. Appellant contends that the court erred in sustaining the state’s objection to defense counsel’s questioning a witness concerning the witness’ "feelings as to persons of black skin.” Counsel waived any right to assert error because after the court’s ruling he stated "I’ll drop it” and "Okay, Sir. I stand corrected. That’s all.” This enumeration is without merit.

Judgment affirmed.

All the Justices concur, except Hall, J., who dissents to Division 2 (a).

Defense counsel orally requested a charge on self-defense with reference to the robbery charge, arguing that Sims ran away with the gun out of fear of being shot with it. However, counsel specifically disclaimed to the trial court any intention of requesting a charge of self-defense concerning the murder, saying "I think that as far as the murder is concerned, there is no self-defense, that would not be appropriate, but . . .[self-defense is appropriate to the robbery charge].” However, in this court counsel argues that a charge on self-defense should have been given in connection with both murder and robbery.