87 Ga. App. 422 | Ga. Ct. App. | 1953
1. In the first special ground of his motion for a new trial, the defendant assigns as error the following charge of the court: “Then address yourselves to the question of whether he is guilty of a lesser offense embraced within the allegations of the indictment, and that is the offense of shooting at another. In that connection, the court charges you that any person who shall be guilty of the offense of shooting at another, except in his own defense, or under circumstances of justification, according to the principles of the Code, with a gun, pistol, or other instrument of like kinds shall be punished by confinement in the penitentiary for not less than one nor more than four years.” The defendant contends that the foregoing is not a correct statement of the law, and was confusing and misleading to the jury, because the court undertook to charge the provisions of Code § 26-1702, defining the offense of shooting at another, and stated that one would be guilty thereof unless the shooting was done in his own defense “or under circumstances of justification according to the principles of the Code,” and the
This charge is not subject to the criticism urged thereto by the defendant. It stated the provisions of the statute (Code, § 26-1702) in the language thereof, except that the judge added thereto the phrase, “according to the principles of the Code.” See Smith v. State, 44 Ga. App. 259 (161 S. E. 267), and Hart v. State, 55 Ga. App. 85 (189 S. E. 547). In the latter case the court held the following charge not error: “It would make no difference, if the defendant or defendants shot at the prosecutor, not in his own defense or under circumstances of justification, according to the principles of the Code, with what intent he shot—whether to kill him or not.”
2. In the second special ground, the defendant assigns error on the allowance by the court, over his objection, of certain testimony by the prosecutor, C. T. Nelson, to the effect that the defendant had, a few moments prior to the shooting of the witness, while out in the yard in front of the home of Nelson’s mother-in-law, pulled a pistol and said he was going to shoot at some men who were passing by on a tractor, on the ground that the testimony was immaterial and irrelevant, having no bearing on whether or not the defendant was justified in shooting the witness. This ground of the motion is without merit and the court did not err in admitting such testimony.
3. In the third special ground, the defendant contends that the court erred in admitting, over his timely objection that it had no bearing on the issues and did not clarify or illustrate whether the defendant was guilty or innocent, the following testimony of Woodrow Maples, a witness for the State: “I know where Vera Grant lives. On Saturday night, March 25, 1952, the same night that C. T. Nelson got shot, I passed Vera Grant’s house. I was traveling on a tractor and Jessie Porterman was with me. We did not notice anything unusual as we passed. We were going from the river to home, and that was after dark.” The court did not err in admitting such testimony, which did not tend to harm or prejudice the defendant.
4. In the fourth special ground, the defendant assigns error on the following testimony of the State’s witness Porterman:
5. In the fifth special ground the defendant assigns error on the court’s allowing the witness Darley to testify for the State, contending that he objected thereto on the ground that Darley had sat at the table with the solicitor during the entire trial and had aided in the selection of the jury, that his name was not on the indictment as a witness, and that he remained in the courtroom during the trial, being offered as a witness for the State at the conclusion of the defendant’s evidence. This ground is not insisted upon nor mentioned at all in the defendant’s brief and argument in this court, and will be treated as abandoned.
6. The evidence tended to show: that the defendant was at the home of the mother-in-law of C. T. Nelson, Vera Grant; that he was out in the yard with Nelson and two other men, and they were talking; that the defendant had a pistol and was drinking and cursing; that the man Nelson went into Vera Grant’s kitchen and asked her to fix him something to eat, and while he was in there the defendant came in; that he had, while in the yard, pulled out his pistol and stated that he was going to shoot at some white men who were passing by the house on a tractor; that Vera Grant tried to get the defendant to leave the house and he would not go; that two others came up, R. B. Page and Lucy Page, who were the defendant’s aunt and uncle, and they tried to get the defendant to leave, but he remained in there "cussing and raising sand”; and that the witness, C. T. Nelson, then “got him and just pushed him out of the door and shut the door, and when he got outside, he began to shoot.” It appeared that Nelson and his mother-in-law, Vera Grant, wanted “him out because he was cursing and raising sand in the house.” The evidence authorized the jury to find that, when the defendant was gotten out of'the house of Vera Grant, “He started
The jury found the defendant guilty of shooting at another. Under the evidence the jury could have found the defendant guilty of assault with intent to kill. While there was evidence from which the jury could have found that the defendant was justified, acting in self-defense, yet the jury found the contrary, although they did find that there was no intent to kill. A verdict that the defendant was justified in shooting at the prosecuting witness Nelson was not demanded, and the verdict rendered, that the defendant was guilty of shooting at another with a pistol, was authorized by the evidence and was not contrary to law for any reason. A person may be found guilty of shooting at another in violation of Code § 26-1702, even though there is evidence from which the jury might have determined that he was guilty of the greater offense of assault with intent to murder. Loyd v. State, 26 Ga. App. 259 (106 S. E. 601). “A per
The evidence, authorized the verdict and, no error of law appearing, the trial court did not err in overruling the defendant’s motion for a new trial as amended.
Judgment affirmed.