39 Ga. App. 21 | Ga. Ct. App. | 1928
C. E. Beid was convicted of assault with intent to murder James O. Walker, and, his motion for a new trial being overruled, he brought the case to this court for review.
The contention of the State is that on the afternoon of March 3, 1928, some young white men and some negroes were engaged in a fight when the prosecutor in this case came up, but refused to take part in the difficulty, and, after Avatching the fight for a short time, went on to town. The white men engaged in the afternoon fight, incensed because Walker would not help them fight the
Eeid admitted that he shot at the prosecutor, and admitted that with a pump-gun in his hand he told the prosecutor’s brother, as he started to drive by, to “wait a minute,” but his contention was that one Green had been cut by one of the negroes during the fracas in the afternoon; that Green was at the hospital, and had
To state the contentions as set out in the foregoing statement of facts is to state in substance the evidence of the respective parties. Where the evidence is conflicting its credibility is for the jury, and we can not invade the province of the jury. This evidence, the interest of the witnesses, and all the circumstances surrounding the case amply authorized the-jury to conclude that the defendant and others, while under the influence of liquor, went out to kill the prosecutor, Walker, because they believed that he helped the negroes in a fight that afternoon with white men. The fact that the prosecutor was shot in the back is a strong circumstance supporting the theory of the State that he was running from the defendants, rather than facing them and shooting at them. No gun or pistol of the prosecutor was ever found, so far as the record shows. The defendant failed to explain why he carried a pump-gun loaded with buckshot on such a friendly mission as he contended he was engaged in. Turner, Bass, McConnell, Cook, and Homer Reid, witnesses for the defendant C. F. Reid, were all in the party with Reid at the time he shot Walker, and consequently might reasonably be presumed to be interested in his behalf. Green, another witness for the defendant, was the one who was cut by a negro during the fight in the afternoon when Walker refused to help fight the negroes. Some of the parties who were in the fight with the negroes during the afternoon, or at least present, were also with Reid when he shot Walker that night, which also tends to support the State’s contention.
The first special ground of the motion for a new trial complains of the following testimony by Russ Walker: “I told my brother, after I saw he was shot, that he would have to go to the hospital, and he said he was afraid to go back by there, and he said they were all drinking and I better not carry him back by there, and I knew it was either to carry him or he would die, and when I got
The 3d special ground of the motion alleges that the court erred in refusing to permit a witness for the defendant to testify: “I did not see Walker shoot at Reid. I saw him with a gun.” This ground shows that the time that the prosecutor had the gun was a month previous to the shooting in the instant case; and since the witness stated that he did not see Walker shoot at Reid, the refusal of the court to permit the defendant to prove merely that Walker had a gun a month prior to the difficulty under consideration was not harmful to the accused.
The 3d, 4th, and 5th special grounds of the motion allege error because the court admitted testimony as to the fight that occurred during that afternoon between the negroes and the young white men. This evidence was admissible to show motive. The State
The failure of the court to charge the law of voluntary manslaughter, as alleged in the 6th ground of the motion, will not require a new trial. Under the evidence, the defendant either shot the prosecutor with intent to kill and without justification, or shot him without intent to kill and without justification, or shot him in self-defense after the prosecutor shot at him. The charge in its entirety was fair to the accused.
The charge complained of in ground 7 when considered in connection with the remainder of the charge- of the court is not erroneous. The court charged fully on the burden of proof, and that the jury should be satisfied of the defendant’s guilt beyond a reasonable doubt, before they could convict; and the charge clearly showed the distinction between assault with intent to murder, shooting at another, and justifiable homicide.
Grounds 8, 9, and 10 deal with the court’s failure to charge the jury with reference to their right to recommend that the accuáed be punished as for a misdemeanor. The record discloses that the court omitted to charge this principle of law until after the verdict had been published; but the record discloses also that the jury rendered a verdict of guilty and fixed the punishment at a minimum and maximum of five years, and after the verdict was read in court, but before the jury was discharged, the trial judge charged the jury as to their right to recommend that the accused be punished as for a misdemeanor, and they retired, and, after considering the matter again, returned the same verdict. To have failed to charge this principle of law would have been reversible error; and to charge it after the verdict was published was error, and under different circumstances could have been reversible error. However, this law deals only with the punishment of the accused, and not with his guilt, and the jury had already found him guilty, and this irregularity in charging, the jury tended to help rather than harm the accused. When a jury returns a verdict of guilty
The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
Judgment affirmed.