Andrew J. Ryan, Jr., Solicitor General, Andrew J. Ryan, III, for appellee.Sullivan & Herndon, John J. Sullivan, for appellant.

1. A denial of a motion for directed verdict may now be enumerated as error under the Appellate Practice Act. However, such motion by the defendant was properly overruled in this case.

2. There is no error in charging the law of manslaughter where there is doubt as to the grade of homicide involved. 3. The verdict was supported by the evidence.

Appellant, Retha Mae McTerrell, was tried on a charge of murder in the Superior Court of Chatham County. The jury found her guilty of voluntary manslaughter and sentenced her to 5 years of imprisonment.

The defendant's defense was justifiable homicide. She testified that the decedent was her husband and had on many occasions in the past hit her or beat her with a tire iron which he kept in his car; that decedent had just received a telephone call which excited him, during which he said "Yes, she's here now, that s-b is here now," after which he began looking and asking for his gun, and being unsuccessful, he ran out of the door hollering, "I don't need it. I'm going to kill you 'cause I'm tired of you." Defendant also testified that decedent said he was going to beat her brains out and that she was afraid he was and just as he "stooped" to the car she shot him.

The defendant's sister testified that she knew the decedent; that she had been with them both on several occasions when arguments arose and had on one occasion seen the decedent reach for his tire iron to hit the defendant, but that she grabbed the tire iron and prevented it; and that she had on another occasion seen the defendant with a swollen eye and heard the decedent apologize saying he was sorry for knocking her in the eyes but at the time had been drinking too much. This witness also testified that the morning after the shooting she saw the decedent's car and that the car was parked in front of the house with the driver's side next to the curb with the door open and the tire iron was lying there, one end in the grass and the other end leaning on the door frame.

Another witness for the defense testified that she lived in the neighborhood; that her home is about 30 feet away from the McTerrell home with just one house in between, and that she had known the decedent for 16 years, was a friend of both, had been in their home many times, knew the voice of the decedent, had heard the decedent shout "I'm going to kill you" and then heard the shots. She also testified that she was with them on several occasions when the decedent would become enraged and curse the defendant; that she had seen him hit the defendant with his tire iron and strike her without reason; that on another occasion she had stepped between them and calmed the decedent when he had been drinking and picked up a butcher knife; and that she had let the defendant stay over with her on many nights and had seen her with swollen eyes and bruises on her body.

Several witnesses testified as to the defendant's good character.

Officer W. L. Williams, an employee of the detective division of the Savannah Police Department, testified that he was in the vicinity around 9:30 p.m. and was drawn to the scene when he heard two or three gun shots; that he went in the direction from which the sound had come and saw two people on the sidewalk; that the decedent was "crouched" hands down trying to get up or falling down, and the defendant was standing between the decedent and the street; that as he approached them he saw the defendant with her arm extended toward the decedent and heard two more shots; that defendant gave him the gun when he arrived; and that the gun was a 38-calibre pistol and contained 5 empty shells and one live round.

Officer W. J. Bush testified that he took over from Officer Williams at the scene. He stated that he did not find a tire iron in the vicinity of the shooting but there could have been one down by one of the cars.

Officer R. E. Tuttle testified that he took up the investigation at the scene from Officer Bush; that he made a general search of the area in the vicinity where the body was lying and around the sidewalk; that there was an automobile parked in the street 6 or 8 feet away and more or less in front of where the body was found; that he found no tire iron but that he had no particular reason for searching any automobiles or the ground around them because his information was that someone had been shot and he had no reason to look for a tire iron.

Dr. H. M. Smith, coroner, testified that there were two pistol wounds in the body, one in the chest and one in the abdomen, and that both entered from the front part of the body.

The appeal is taken from an order denying defendant's motion for new trial.

1. The first enumeration of error is that the court erred in not granting defendant's motion for a judgment of acquittal at the close of the evidence. Although formerly it was never error for the trial judge to deny a motion for directed verdict, the Appellate Practice Act of 1965, as amended, now provides that such may be enumerated as error. Sutton v. State, 223 Ga. 313, 314 (1) (154 SE2d 578).

In this case the homicide was admitted. The burden was then upon the defendant to justify or mitigate the homicide. Mann v. State, 124 Ga. 760 (1) (53 SE 324, 4 LRA (NS) 934). The defendant presented evidence tending to establish that she believed and feared she was about to be killed or feloniously attacked by the decedent with a tire iron. Whether the circumstances presented were sufficient to justify such fear in a reasonable person was a matter for the jury and not the judge to decide. Cumming v. State, 99 Ga. 662 (2) (27 SE 177). There was no error in overruling defendant's motion for a judgment of acquittal.

2. The second enumeration is that the court erred in charging the jury on the law of manslaughter when the evidence failed to show this element of the law to be involved in the case.

"Whenever there is any doubt as to the grade of the offense, it is the duty of the court clearly and distinctly to instruct the jury as to the law, defining the several grades of homicide." Crawford v. State, 12 Ga. 142, 149. The evidence here authorized a charge on the law of manslaughter, justifiable homicide and murder. Charging the jury on the law of manslaughter was not error.

3. The remaining enumerations are the three general grounds of a motion for new trial and present the question only of whether there was any competent evidence to support the verdict. The jury was authorized by the evidence to find that the defendant killed the decedent while under the violent impulse and excitement of passion, aroused by his statements that he was tired of her, his threats to kill her, and his actions in running out of the house toward the car where a tire iron was located.

1968