Summary
In Shields v. State, 126 Ga. App. 544 (191 S.E.2d 448), his conviction and sentence were reversed. He was retried and again convicted of voluntary manslaughter, the jury this time fixing his sentence at 17 years (in 1972).
Summary of this case from Shields v. StateOpinion
47200.
SUBMITTED MAY 4, 1972.
DECIDED JUNE 21, 1972.
Voluntary manslaughter. Fulton Superior Court. Before Judge McKenzie.
Glenn Zell, for appellant.
Lewis R. Slaton, District Attorney, James H. Mobley, Jr., Joel M. Feldman, Richard E. Hicks, for appellee.
The appellant was convicted of manslaughter and a misdemeanor. An appeal was filed and the case is here for review. Held:
1. Where a preliminary hearing is held the defendant must be afforded counsel because it is a critical stage of the criminal court process. Coleman v. Alabama, 399 U.S. 1 ( 90 SC 1999, 26 L.Ed.2d 387). However, the defendant is not deprived of any constitutional right if the grand jury issues an indictment against him prior to the holding of a preliminary hearing. Johnson v. Plunkett, 215 Ga. 353 (3) ( 110 S.E.2d 745); Johnson v. State, 215 Ga. 839 (5) ( 114 S.E.2d 35); Cannon v. Grimes, 223 Ga. 35 (2, 3) ( 153 S.E.2d 445); Henderson v. State, 225 Ga. 273 (2) ( 168 S.E.2d 160). Therefore, it was not error to deny the defendant's motion for a preliminary hearing which was made subsequent to his indictment.
2. The appellant contends that the trial judge erred in instructing the jury: "Now, the law presumes every act which is in itself unlawful was criminally intended until the contrary is made to appear." Under that which was held in Williams v. State, 126 Ga. App. 454, the appellant's contention is correct because the charge is contrary to that which is stated in the Criminal Code of Georgia, § 26-605 ( Code Ann. § 26-605; Ga. L. 1968, pp. 1249. 1269).
3. The remaining enumerations of error are without merit.
Judgment reversed. Hall, P. J., and Pannell, J., concur.