Linder v. State, 6384

6384 | Ga. Ct. App. | Oct 26, 1915

Russell, C. J.

1. The court’s instruction to the jury, in reference to the defendant’s statement at the trial, that they might “believe it in whole or believe it in part,” was hot subject to exception on the ground that the court did not add that the jury were “at liberty to disbelieve the whole of the statement if they saw fit to do so.” The omission complained of could not have been prejudicial to the accused.

(a) The statement of one of the contentions of the prosecution, that the defendant pointed the gun “not in self-defense or in defense of habitation, property, or person, or other circumstances standing upon like footing of reason and justice,” was supported by evidence, and, in connection with the context, was in no sense an intimation of opinion by the court as to what had been proved.

Decided October 26, 1915.

Indictment for misdemeanor; from Laurens superior court— Judge Larsen. 'December 29, 1914.

Sal B. Wimberly, A. A. Burch, for plaintiff in error. E. L. Stephens, solicitor-general, contra.

(6) The complaint that there was a variance between the allegata and the probata, in that the State failed to prove that the pointing of the gun was not in sham battle by the military or in defense of habitation, property, or person, or under other circumstances standing upon like foting of reason and justice, is not sustained; for every circumstance of the pointing in this case, as proved by the State, shows that the weapon was not used as permitted by these exceptions.

2. The evidence authorized the verdict, and there was no error in refusing a new trial. ' Judgment affirmed.