Johnson v. State , 242 Ga. 822 ( 1979 )

Nichols, Chief Justice.

Johnson was tried and convicted for the murder of his estranged wife. He was sentenced to life imprisonment. He appeals. This court affirms.

His sister-in-law testified that she was listening in on an extension telephone one morning when he told his wife he was going to kill her. On the next afternoon he left work early, went to his parents’ house and got a gun. He then went to a sporting goods store and purchased ammunition for the gun. Thereafter, he located his wife in a store’s restaurant where she was sitting with her sister. After a short conversation, he asked her to go outside with him so they could talk privately. A short time later he returned to the front of the store where he asked the guard to call the police, saying that he had shot his wife. His defenses were accident and insanity. He testified that after he and his wife left the store together, they went to the parking lot and got into his truck to talk; that his wife told him she was not coming back to him and did not love him; that they had an argument and he threatened to shoot himself; and that the gun went off accidentally, shooting his wife.

1. He first contends that the trial court erred in charging the law of confession. The true determinant of whether the defendant has made a confession or merely has given a statement "is whether the statement is offered by the accused as exculpatory or inculpatory.” Robinson v. State, 232 Ga. 123, 126 (205 SE2d 210) (1974); Gaines v. State, 239 Ga. 98, 100 (236 SE2d 55) (1977). " 'A statement which includes facts or circumstances which show excuse or justification is not a confession of guilt even if it admits the main fact.’ ” Robinson v. State, supra, at p. 126.

Johnson’s statement is inculpatory despite the fact that it ends with the sentence, "I got the pistol... to kill myself.” Those words are not legally sufficient to justify or excuse the crime. The statement was a confession because it admitted the main fact, the killing, without including facts or circumstances showing excuse or justification. The trial court did not err in charging the law . of confession.

Argued October 10, 1978 Decided January 5, 1979.

2. He next contends that the trial court erred by allowing the victim’s sister to testify that he told the victim over the telephone that "he was going to blow her brains out.” The witness testified that using an extension telephone she had listened to the telephone conversation between Johnson and the victim at the victim’s request; and that the conversation was normal in all respects except that it ended with the threat and with Johnson’s hanging up the telephone.

This evidence tended to rebut Johnson’s defenses of accident and was admissible to show intent, state of mind, plan or motive. Davis v. State, 233 Ga. 638 (212 SE2d 814) (1975); Blake v. State, 239 Ga. 292 (236 SE2d 637) (1977). The second enumeration of error is without merit.

3. There was no error in failing to charge that the state has the burden of proving sanity beyond a reasonable doubt. State v. Avery, 237 Ga. 865 (230 SE2d 301) (1976); Durham v. State, 239 Ga. 697 (238 SE2d 334) (1977); Potts v. State, 241 Ga. 67 (243 SE2d 510) (1978).

4. Johnson’s final contention is that since the magistrate ordered him bound over on a charge of voluntary manslaughter, the district attorney had no authority to present to the grand jury a charge of murder. Code § 59-304 provides: "Grand jurors are bound only to notice or make presentments of such offenses as may or shall come to their knowledge or observation after they shall have been sworn; nevertheless they have the right and power, and it is their duty as jurors to make presentments of any violations of the laws which they may know to have been committed at any previous time, which are not barred by the statute of limitations.” Thus, the grand jury is not bound by the charge stated in the order of the magistrate binding the defendant over. Nor are they bound by the presentment of the district attorney. They must make a separate determination as to what offenses have been committed. This enumeration of error has no merit.

Judgment affirmed.

All the Justices concur, except Hall, J., who concurs in the judgment only. Calhoun, Cohen & Associates, George M. Hubbard, for appellant. Andrew J. Ryan, III, District Attorney, Joseph D. Newman, Assistant District Attorney, Arthur K. Bolton, Attorney General, Susan V. Boleyn, Assistant Attorney General, for appellee.