Appellant was tried before a jury on an indictment which charged him with commission of aggravated assault by shooting the victim with a handgun. He appeals from the judgment of conviction and sentence entered on the jury’s verdict of guilty.
*902 1. Appellаnt enumerates as error the trial court’s refusal to give a requested jury instruction on the defense of accident or misfortune.
“A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily apрears there was no criminal scheme or undertaking, intention, or criminal negligence.” (Emphasis supplied.) OCGA § 16-2-2. Although appellant gave conclusory testimony that the shooting of the victim had been an accident, his description of the actual events shows that the shooting was nevertheless the result of his criminal conduct. Appellant testified that the victim, who had been sharing his dwelling, was packing to move out. Appellant armed himself with a pistol for a confrontation with the victim because he was “insistent” on getting his keys back. Appellant stated that, as he had approached the victim from behind, he pulled the gun out of his pocket and, in doing so, he unintentionally “hit her in the back of the head” with the weapon. The gun then discharged and the victim was struck by the bullet.
Appellant’s testimony clearly does not show that his shooting of the victim was the result of an “accident,” and not the result of his intent to commit a crime upon the victim. His testimony shows only that his criminal attempt to commit an aggravated assault upon the victim was “accidentally” completed in a manner other than hе had intended. At the time the gun discharged, appellant’s own testimony shows that he was engaged in an attempt to commit аn aggravated assault upon the victim by drawing the gun and pointing it at her. See OCGA § 16-5-20 (a) (2). He would not be entitled to a charge оn the defense of accident simply because his criminal attempt had the unintended consequence of cоmpleting the offense by actually causing a violent injury to the victim. See OCGA § 16-5-20 (a) (1). “[AJppellant pointed a pistol at the victim [, and t]hat constitutes the felony of aggravated assault. [Cit.]”
Smith v. State,
2. The trial court excluded testimony from certain defense witnesses which was to the effect that, in out-of-court statements, appellant had described the shooting as an accident. Appellant enumerates
*903
this evidentiary ruling as erroneous under
Cuzzort v. State,
“[I]t is a well-established general rule that a statement of a party, whether oral or written, which is of a self-serving nature is not admissible in his favor.”
Denton v. Etheridge,
However, even assuming that
Cuzzort
were to be construed as overruling sub silentio the “well-established general rule” that self-serving, out-of-court declarations are inadmissiblе, there was no error in disallowing the admission of the self-serving declarations of appellant in this case. Whether оr not a defendant has committed a proscribed act, such as the molestation of the victim in
Cuzzort,
is a question of faсt. Whether or not a defendant’s proscribed act, such as the shooting of the victim in the present case, is totally excusable as an “accident” is a mixed question of law and of fact. See Division 1. Testimony, such as that in
Cuzzort,
relates to a given set of facts and is admissible. Opinion testimony, such as that excluded in the present case, relates to the legal consequences of a given set of facts and is not admissible. “One’s purpose in doing a specified act is immatеrial and irrelevant, if the legal consequences of such act are definitely fixed by law. Where the only effect оf testimony sought to be adduced is to elicit the opinion of the witness upon a question of law, and not one of faсt, such testimony should be repelled.”
Connor v. Hodges,
3. Although appellant was indicted pursuant to subsection (a) (2) of OCGA § 16-5-21, the trial court’s charge to the jury included an instruction on the entirety of the code section. Appellant enumerates the giving of this instruction as error.
A review of the jury charge as a whole shows that, after instructing the jury on the entirety of OCGA § 16-5-21, the trial court
*904
restated the specific allegations of the indictment and instructed the jury that a guilty verdict would be authorized only if it fоund “beyond a reasonable doubt each and all of these contentions of the State to be the truth of the cаse.” Since the charge as given nowhere authorized the return of a verdict of guilty based upon acts which were not alleged in the indictment, there was no error in fully instructing the jury on the offense of aggravated assault.
Searcy v. State,
Judgment affirmed.