Gaddis v. StateGaddis v. State
Under an indictment charging murder in the second degree, this appellant’s jury trial resulted in a verdict and judgment of guilty of manslaughter in the first degree.
The evidence presented by the State tended to show thаt about 8:00 P. M. Mildred Hand, widow of the deceased, and Safronia Kelley, James Meadows, and the аppellant were standing in a country road in Coosa County talking.
According to Mildred Hand the deceased approached the group, and he and appellant started talking. Therе had been no trouble. She did not see or hear the deceased slap or hit the appellant, and the first thing she knew the appellant had shot the deceased with a twenty gauge shotgun. At the time the appellant and deceased were about as far apart “as from herе to that lamp (indicating).”
As to the positions of the other parties, the witness placed them by suсh expressions as “standing right there (indicating),” or “standing along there '(indicating).” Apparently these positions were in reference to the positions occupied by persons or things in the court room.
On cross examination this witness testified that she did not know “for sure exactly how far apart” appellant and deceased were when the shot was fired, that the night was dark and she was just guessing the distance.
On redirect examination she further testified that after the shot was fired she ran up to aрpellant and caught hold of the gun, and that deceased then grabbed the gun. Both turned it loose, and she helped deceased to the ground.
Safronia Kelley, a witness for the State, testified that when the deceased approached he announced: “I heard every word you said and no need of running and he come up and slapped Jodie and staggered Jodie baсkwards and the gun went off and me and James run across the field.”
Immediately after he was slappеd the appellant “had the gun like that (indicating) ; that is where it was when I saw the barrel of the gun leave the ground; he had the barrel of the gun pointing to the — • he didn’t have it up this way (indicating) ; it was down this way (indicating).”
It was at this point that this witness fled the scene.
Jаmes Meadows’ testimony was of the same tenor as that of Safronia Kelley, except that he started running when deceased slapped appellant and he did not see apрellant raise the gun.
In his own behalf the appellant testified that when deceased approached he stated: “God damn you, no need of running,” and then the deceased slappеd him down, knocking out his teeth. As he fell the deceased grabbed the gun barrel and started jerking it, and the gun firеd.
On cross examination the appellant testified that before he fired the deceasеd also cut him three times in the back, and once on the hand.
Though he had owned the gun about a month, he did not know the gun had a safety on it.
In rebuttal Mildred Hand testified that she examined the deceasеd after he was shot, and he had no weapon, but she did find forty-five cents in his pocket.
Counsel for аppellant argues that the lower court erred in refusing appellant’s requested charges, affirmative in nature, and in denying his motion for a new trial because of the insufficiency of the Statе’s evidence.
In this state of the record therе is no basis upon which we could rationally say that the evidence presented by the State did not arise to the degree required to justify the refusal of the affirmative charges, and the denial оf the motion for a new trial.
Further, the record shows, as to the refused charges, that they were not endorsed, nor signed, by the trial judge.
Counsel for appellant argues that by setting up the failure of thе trial judge to endorse and sign the charges as grounds for his motion for a new trial, the matter is brought befоre’ us for review.
This contention is without merit. So far as the record shows, the failure to endorse and sign the charges was a mere inadvertence on the part of the trial judge. The grounds of the motion for a new trial assert that the judge failed to endorse the charges, not that he refused tо do. so. Under such circumstances the inadvertence of the trial judge must be called to his attеntion if the party claiming injury seeks to benefit thereby. Barnewall v. Murrell,
Affirmed.