Opinion
40023.
DECIDED APRIL 3, 1963. REHEARING DENIED APRIL 11, 1963.
Involuntary manslaughter. Fulton Superior Court. Before Judge Alverson.
Wesley R. Asinof, for plaintiff in error.
William T. Boyd, Solicitor General, Frank S. French, Eugene L. Tiller, contra.
1. Where a verdict in a criminal case finds the accused guilty of a crime not made in the indictment a motion in arrest of judgment will lie. Spence v. State, 7 Ga. App. 825, 826 ( 68 S.E. 443).
2. Only the indictment, plea, verdict and judgment may be considered on a motion to arrest a judgment. Pippin v. State, 172 Ga. 224 (1) ( 157 S.E. 185).
3. "Under an indictment for murder the accused may be convicted of a lower grade of felony, or even a misdemeanor, if the lesser offense is one involved in the homicide and is sufficiently charged in the indictment." Watson v. State, 116 Ga. 607 (4) ( 43 S.E. 32, 21 LRA (NS) 1).
4. Under an indictment for murder which charges that the accused committed such unlawful act "by shooting" his victim with a pistol a verdict of involuntary manslaughter in the commission of an unlawful act may be authorized by the evidence. See Lee v. State, 74 Ga. App. 212 ( 39 S.E.2d 426); Irvin v. State, 9 Ga. App. 865 (1) ( 72 S.E. 440).
5. If a verdict is authorized under an indictment, in considering a motion to arrest such judgment it will be presumed that the evidence authorized such verdict. Watson v. State, 116 Ga. 607 (6), supra.
6. The trial court did not err in overruling the defendant's motion to arrest the judgment.
Judgment affirmed. Frankum and Jordan, JJ., concur.
DECIDED APRIL 3, 1963 — REHEARING DENIED APRIL 11, 1963.
The defendant was tried under an indictment which charged him with the offense of "Murder for the accused . . . did unlawfully, with malice aforethought, kill and murder one Alice Eloise Simpson, by shooting her with a pistol." He was convicted of involuntary manslaughter in the commission of an unlawful act and sentenced to a term of not less than 5 years nor more than 5 years. Thereafter, his motion in arrest of judgment, based on the ground that the offense of involuntary manslaughter in the commission of the only unlawful act charged, to wit: "shooting at another," would not authorize the verdict and involuntary manslaughter under such circumstances was not one of the lesser crimes included in the greater, was overruled. Error is assigned on such adverse judgment.