Leon Gladney was indicted for murder. Upon the trial of the case the jury returned a verdict finding the defendant guilty of voluntary manslaughter and fixed his punishment at not less than one year and not more than three years in the penitentiary. The defendant’s motion for a new trial based upon the usual general grounds and one special ground was overruled and he excepted.
Upon the arrival of the sheriff at the hospital, approximately 20 or 30 minutes after the shooting, the defendant turned his pistol over to the sheriff. The sheriff testified concerning the defendant’s gun, “It was empty, empty cartridges in it.” The evidence is undisputed that, at the time of the shooting, Thomas Gladney had a pistol, which was not concealed as it was stuck in a holster under his belt and was sticking out from under his shirt. This pistol was turned over to the sheriff on the night of the shooting, and though the gun passed through the hands of several persons before reaching the sheriff, the sheriff testified that there were no empty chambers in this pistol, at the time he received it. The defendant introduced M. P. Awbrey as a witness, and he testified that the defendant’s car was a two-do'or car, and that'he had removed the right-hand door of the car, the side on which the shooting occurred. The door, which was tendered in evidence, contained a hole. This witness testified that he saw the hole in the door the next morning, but there was no evidence of how the hole came to be there, or of when or by whom it was put there. The defendant made the following statement: “. '. The night this happened up there, the city had impressed it on me not to permit people to park in the road; Tom Gladney parked his car with a few feet of the body sticking up in the highway. I walked out and there and says, ‘Hello Tom.’ I says, ‘Tom, move your truck back a few more feet.’ He says, ‘Hell, its seven feet from the middle of the road.’ I says, ‘It don’t make any difference, I will have to make a case unless you move it.’ I got back in the car and set down. He went
The jury was authorized to find from the evidence and the defendant’s statement to the jury that, under the circumstances at the time the defendant shot the deceased, there was. no actual or apparent necessity to slay to prevent the .commission of a felony upon the defendant, but that the defendant,, under one phase of the evidence and the defendant’s statement,, acting under an unabated heat of passion, aroused by an actual, assault less than a felony upon him by the deceased, shot and killed Thomas Gladney. It follows that the jury was authorized to find against the defense of justifiable homicide and in returning the verdict of voluntary manslaughter. Albert v. State, 70 Ga. App. 39 (27 S. E. 2d, 249); Barney v. State, 5 Ga. App. 301 (63 S. E. 28); Walker v. State, 80 Ga. App. 418, 421 (56 S. E. 2d, 132); Ragland v. State, 111 Ga. 211, 214 (36 S. E. 682); Brown v. State, 144 Ga. 216, 218 (87 S. E. 4).
In special ground 1, the defendant contends that “the-prosecution failed to establish the fact of the proof of death,.
The testimony of one Norris Kee, is as follows: “I am employed by Lewis & Lipford, funeral directors, as an embalmer. I am a licensed embalmer. I knew Thomas Gladney, or Tom Gladney. I saw Tom Gladney on the 13th day of August, 1949, at the Heard County Memorial Hospital. He was dead. I examined his body. He had wounds on his body. He had one right here on the left arm (indicating); about two or three inches of the left elbow, outside of the left arm; one inside of the left arm; one on the left side; one in his right hand, went in this finger (indicating) on his right hand; one in the back below his shoulder blade; and one about half way between the Adam’s, apple and the middle of the neck. They were bullet wounds. I did not examine those wounds closely. I looked at where they went in on the body. In my opinion these bullet wounds produced his death. He had eight holes in him. I don’t know how many times he was shot. It could be that one shot made two wounds. One was right here (indicating), on the outside of the elbow, and one inside of his arm. I did not make any probe of the wounds to see where the bullets went in and come out. There was a hole in his left arm below his elbow and one in the back of the arm. There was one in the left arm, one in his. right hand close to his first finger; one right under here and one-right here (indicating): There was one in his right hand near the index' finger and thumb. There was another right here (indicating) . I don’t know, I reckon that was where the bullet come-out. Two holes right together. I did not probe the wounds at all. There was one right in his back, belo.w his left shoulder blade; one in his neck about half way between the Adam’s apple and the root of the neck. I don’t know where these bullets entered, I couldn’t tell. There was a bullet that went into-his left side. There was one right here (indicating). In reply to the question, ‘Is it possible that either one of those bullets, come out and went [in?] out at another place,’ I don’t know the position the deceased was in at the time the bullets struck him. I would say it is entirely possible that the bullet that went in here (indicating) was the same one that made this hole (indicating). It is entirely possible that the same bullet that went
The other evidence authorized the finding that the defendant inflicted these wounds the same night the deceased was taken to the hospital and he died. Counsel for the defendant contend that there was no proof that Thomas Gladney died from bullet wounds rather than from a heart attack suffered because of the excitement on the night in question. We think that the evidence was a sufficient basis for the conclusion that death resulted from the wounds rather than from some other cause, the existence of which there was no evidence to establish. Long v. State, 60 Ga. App. 517 (4 S. E. 2d, 75); Weaver v. State, 200 Ga. 598, 607 (37 S. E. 2d, 802); Hicks v. State, 66 Ga. App. 577 (18 S. E. 2d, 637); Pinson v. State, 184 Ga. 333 (191 S. E. 95).
The court did not err in overruling the motion for a new trial.
Judgment affirmed.