13 Ga. App. 623 | Ga. Ct. App. | 1913
The accused was indicted for the offense of assault with intent to murder, and was convicted of shooting at another, with a recommendation to mercy. A sentence of one year in the penitentiary was imposed. His motion for a new trial was overruled, and he excepted.
Complaint is made in the motion that the court failed, to charge that the accused would not be guilty of assault with intent to murder, unless he was actuated by malice and intended to kill the person shot. Since the accused was not convicted of assault with intent to murder, we need not examine the record to ascertain whether this assignment of error is well founded.
The only other special complaint in the motion for a new trial is that the court ignored the recommendation of the jury and imposed a sentence which was, in view of the evidence, too severe. It has been many times held both by the Supreme Court and this court that the quantum of punishment to be imposed within the statutory limits is a matter absolutely within the discretion of the trial judge, and that the reviewing court can not interfere.
Counsel for the accused earnestly argued that the verdict is without evidence to support it. The person shot was the neighbor of the accused and on friendly terms with him. It is apparent, from the testimony, that when the pistol was fired the accused did not know that he was shooting at his neighbor. The theory of the defense was that, hearing, a noise in the yard and supposing some one was attempting to steal ducks which belonged to him, the accused got his revolver, came out on the porch, which was 12 or 14 inches above the ground, saw his ducks running about in the yard some -15 or 20 feet away, and fired into the ground. The person shot was in his own lot adjoining that of the accused, had just driven his automobile to his garage, and was in about the center of his lot There was a fence between the two lots and the moon was.
Judgment affirmed.