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107 Ga. App. 609

131 S.E.2d 111

Waller v. State

Court of Appeals of Georgia

Decided April 3, 1963

Court of Appeals of Georgia · decided 1963-04-03

Cited by 1 later decisions — most recently November 1963

1 state decisions

Relies on Watson v. State · Spence v. State · Pippin v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1963-04-03

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Nichols, Presiding Judge.

¶1 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 SE 443).

¶2 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 SE 185).

¶3 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 SE 32, 21 LRA (NS) 1).

¶4 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 SE2d 426); Irvin v. State, 9 Ga. App. 865 (1) (72 SE 440).

¶5 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 6. The trial court did not err in overruling the defendant’s motion to arrest the judgment.

¶7 Judgment affirmed.

Frankum and Jordan, JJ., concur. *610 Wesley B. Asinof, for plaintiff in error. William T. Boyd, Solicitor General, Frank S. French, Eugene L. Tiller, contra.
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