*1 Alexander, Lanier, appel- for Lanier, Lee S. & Robert S. Lanier lant. Franklin, Franklin, B.
Allen, Edenfield, & James Brown appellee. v. THE STATE. GREEN
45515. January September 197 0 Decided Submitted applied Cert, February Rehearing for. 1971 — denied Parker, appellant. I. James indicted for assault Judge. 1. The defendant
Evans, His sworn at another. and convicted of to murder intent victim, but intentionally toward the shoot he did is that only deter him him but to intending not to hit his side aimed at or accident defense of misfortune advancing with a knife. No the bul- The intent follows circumstances. involved under these is to shoot in intent was let, jury question whether the it was a failing charge did not err revenge. The court self-defense charge malice reasoning, By the same law of accident. proper given was a one. as joined may not be offenses separate and distinct While (Bennings v. indictment count of an
the same necessarily alleges 370)), indictment a multicount (Ivester App. offenses separate and distinct ways, and alleges offense in different else the same judge usually within discretion separate are an between counts. Where offenses require election alleged, indictment to demurrer , although differ- congruous committed at counts refer to offenses *2 (Webb State, against people v. 177 places different ent times and (147 (170 State, 252); App. v. 90 SE2d 414 Strauss 113 Ga. Ga. SE (149 State, 367); App. 113 Ga. 670 SE2d Anderson v. single "In the offenses are a transaction. contrary, separate statutory provision to the counts absence may charge arising different offenses an indictment or information 1136, 42 CJS Indictments and Infor- out of same transaction.” mations, appellant charged 180. This two-count indictment § (1) 1968, 3, abducting Sparks Dan on March his co-defendant with (2) day. It assaulting him with intent to murder on the same interposed ground on the of mis- was not to the demurrer joinder, compelled nor could the State be to elect on which count prosecute. it would jurisdictional proved clearly Venue is a fact must be State,
beyond
(2);
a
doubt.
v.
After a
evidence must
light
pre-
be construed
this court
its
most favorable
vailing
every presumption
being
party with
and inference
in favor
State,
641,
App.
upholding
verdict.
v.
Ga.
644
that
Wren
57
(64
(191
Brock,
146);
R.
v.
862
Southern
Co.
132 Ga.
(5) (100
1083);
Amerson,
628);
Stapleton
App.
v.
96 Ga.
471
SE2d
Bailey,
Young
App.
Men’s Christian
v.
690
Assn.
(1)
(146
Rich’s,
324); Boatright
Inc.,
121
SE2d
v.
SE2d
State,
"Q. Now,
George Dyer, witness
a
testified:
Church,
you
to on
side of the
near Shiloh
that
refer
county
you
in Polk
I be-
know what
that’s in?
It’s
this same witness testi-
lieve.”
On cross examination
Well,
"Q.
your
it
you don’t
own
fied:
know
going
you? A. I was
to Shi-
County, Georgia
not do
51) (Em-
whether it was or not.”
I don’t know
loh
willing to swear
Obviously,
supplied).
the witness
phasis
place knowledge”
knew the
of his own
"that
own
know that of his
required to
he was not
but
lines and
state
knowledge.
the location of
As to
boundaries,
testify from what others
a witness is entitled
other
community,
him,
and from
reputation in the
and from
have told
(1) (50
Atkinson,
38-313;
v.
Martin
See Code §
726);
Griffin,
AD
Wimbish
Riley v.
AD
(3);
Shuman v.
The evidence roads, very may of and it well have been that ing over a number abduction, captor part of time in during the drove the car the his in Georgia, time in but this no wise Alabama and a of the they previous with the statement as to the conflicts again "stop.” witness testified on direct made their my A. To knowl- What were shot in? examination: edge County Polk I was shot in.” it was proved positively, and one of the is true that venue must be It proving it is of witnesses as to their methods of the hearsay place, they and knowledge which have learned from County actually reputation. many persons in Polk could How knowledge any segment of the their own as to where swear from are, boundary county boundary the line between or where them, Probably County, Georgia, Alabama is? none of Polk and necessarily from the knowledge them would derive but their sufficient, hence the proof of was venue knowledge of others. The contrary lawto or the evidence. conviction error, every and find- enumerated Having each and considered merit, judgment must be affirmed. ing none Jordan, J., Bell, J., Pannell, Quillian P. Judgment C. affirmed. Deen, JJ., Hall, J., Whitman, JJ., P. Eberhardt concur. dissent. dissenting. case venue Judge, "In a criminal
Deen, clearly beyond a doubt.” be crime must established Willis v. Murphy v. venue, Slight evidence of uncontradic- sufficient, questions of ted, ordinarily jury decides evi- applicable where a witness consistency. "But the rule dence on cross on direct examination admits testified to stated facts knowing opportunity no he had means or examination that Kincaid, Telephone Co. to which testified.” Consolidated facts If the evi- I could construe here, does, majority wit- to mean that dence on venue as the community reputation, in the knew from nesses common whatever, altercation took signs, or that the County, in such was was Polk it would not matter that wit- on it is to me that neither of the based But obvious attempted testify knew location. One nesses who to venue examination that he didn’t know them admitted cross Alabama, County, Cleburne "whether was that he was Alabama.” The other one stated Cherokee know whether Shiloh Church going to Shiloh he didn’t Ga., not, "if Shiloh Church is was and that Alabama, Cleburne, my opinion, In that’s where we at.” adequate proof is not of venue. Judge Judge Presiding
I Hall and am authorized to state that join in this dissent. Eberhardt