JACOBS v. STATE, 120 Ga. App. 247 (1969)

170 S.E.2d 36

JACOBS v. THE STATE.

44511.Court of Appeals of Georgia.SUBMITTED JUNE 2, 1969.
DECIDED SEPTEMBER 3, 1969.

The overruling of the amended motion for a new trial was not error.

SUBMITTED JUNE 2, 1969 — DECIDED SEPTEMBER 3, 1969.
Involuntary manslaughter. DeKalb Superior Court. Before Judge Dean.

Otis Jacobs was indicted for the murder of his wife. Upon the trial of the case the jury returned a verdict of guilty of involuntary manslaughter. The defendant filed an amended motion for a new trial which was overruled. The defendant appealed and the case is here for review.

Margaret Hopkins, James R. Venable, H. G. McBrayer, Jr., for appellant.

Richard Bell, District Attorney, Leonard W. Rhodes, for appellee.

Page 248

QUILLIAN, Judge.

1. The appellant contends that the trial judge erred in failing to grant a mistrial because of the admission of certain testimony which he insists placed the defendant’s character in issue. The appellant’s contention is without merit because evidence of the same import was admitted without objection. Kell v. Hunter, 84 Ga. App. 792 (3) (67 S.E.2d 597).

2. The second enumeration of error contends it was error to admit State exhibits 1, 2 and 3 consisting of a coat, shirt and tee shirt because they were not properly identified. Bernice Wimberly testified that the defendant had taken off the clothing and left the articles at her home. This enumeration of error is without merit.

3. The appellant argues that the defendant’s written statement which he gave the police should not have been admitted. The defendant was advised of his constitutional rights and the admission of the statement was not error.

4. The fourth enumeration of error complains that it was error for the judge to instruct the jury in regard to involuntary manslaughter because it was not adjusted to the evidence. There was evidence that deceased was killed while the defendant was in the commission of an unlawful act, namely rendering her a beating about the head and face. Smith v. State, 12 Ga. App. 13 (1, 4) (76 S.E. 647), and Wyrick v. State, 96 Ga. App. 847
(102 S.E.2d 53). See Davis v. State, 93 Ga. App. 253 (3) (91 S.E.2d 316).

5. In the absence of a request, the court did not err in failing to charge the jury the provisions of Code § 26-404 in regard to misfortune or accident. The theory of accident was presented only in the defendant’s statement. Eich v. State, 169 Ga. 425 (5) (150 S.E.2d 579).

Judgment affirmed. Felton, C. J., and Pannell, J., concur.