McDonald v. State

Beasley, Judge,

dissenting.

I must dissent because I cannot concur with the final conclusion drawn in Division 1 of the opinion. Having listened to the tape as best I could from the perspective and in the circumstances of the defendant, I cannot say it was harmless error as a matter of law. The issue was, what was on defendant’s mind when Givens lunged at him, considering their relationship, past events, and the recent tape? The latter was a part of the basis which defendant says influenced his action.

It is the jury’s province, not the court’s, to determine if, considering all of the circumstances, a reasonable fear was justified, as claimed. York v. State, 226 Ga. 281 (174 SE2d 418) (1970). See also the clear and well-stated instruction of the Supreme Court in this regard in Milton v. State, 245 Ga. 20, 25 (262 SE2d 789) (1980).

I am authorized to state that Judge Sognier joins in this dissent.

*513Decided March 20, 1987 Rehearing denied April 3, 1987 Frank K. Martin, for appellant. William J. Smith, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.