93 Ga. App. 895 | Ga. Ct. App. | 1956
Special ground 1 of the amended motion for a new trial assigns error on the following charge of the court: “Under our law everyone has a right to defend himself. The standard of the law is the fear of a reasonable man. Therefore, if one should shoot another with a pistol under circumstances which would justify a reasonable man in believing that a felonious assault was being or about to be committed upon his person, and that the defendant acted under the influence of those fears and not in a spirit of revenge, he would be justified under the law, and it would be the duty of the jury to acquit.” The objections are that such charge led the jury to believe an issue was involved as to the defendant admitting he intentionally shot his victim; that it was not authorized under the evidence and was a defense not urged by the defendant, and tended to deprecate the defendant’s only contention, i.e., that the shot was fired by accident. These objections are without merit. There was certainly an issue as to whether the shot was intentionally fired, and the charge was not given as a contention of the defendant, but as law relevant to the evidence in the case. The defendant’s statement is replete with his fears that the victim, Jackson, was searching for a weapon with which to attack him, and his fear that, if Jackson got hold of his pistol, he would do so. Whether or not such fears were reasonable, the charge that, if he shot under the fears of a reasonable man, he should be acquitted, was favorable to him and therefore not cause for complaint. Gaskins v. State, 12 Ga. App. 97 (5) (76 S. E. 777). If the jury had found that the defendant acted under the fears of a reasonable man, they Would, under this charge, have acquitted him of any offence. If they found the fear under which he acted to be unreasonable, they were yet authorized to find that his actions in coming to the bank
Special ground 2 assigns error on the court’s charge of Code § 26-404, as follows: “A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect,” on the ground that, if the defendant shot while struggling for the pistol in self-defense only, he was not required to exercise any degree of care whatever in his own defense, and should not be limited to showing an absence of culpable neglect, citing Curry v. State, 148 Ga. 559 (97 S. E. 529). This case means only, as stated in Turner v. State, 209 Ga. 532 (3) (74 S. E. 2d 459), that, “where a person, acting in self-defense, intentionally shoots at another, the defense of accidental killing is not involved.” Where the defense of accident and misfortune is involved, it is not error to give this principle of law in terms of this Code section. Roberts v. State, 138 Ga. 815 (2) (76 S. E. 361); Carroll v. State, 200 Ga. 314 (3) (37 S. E. 2d 203). This ground is without merit.
The charge on self-defense under the fears of a reasonable man, as set out in the first division of this opinion, is complained of in special ground 3 of the amended motion for a new trial on the further .ground that self-defense is a material issue in this case, and the charge was erroneous in restricting the movant’s defense to the circumstances of justification provided by Code § 26-1012, and movant was deprived of the benefit of the defense of justification provided in Code § 26-1011. This ground is insufficient for consideration by this court. “It is not a good assign-mart of error on a portion of the judge’s charge, which states a correct principle of law applicable to the case, that some other correct and appropriate instruction was not given.” Lumpkin v. State, 152 Ga. 229 (3) (109 S. E. 664).
It is pointed out in division 1 hereof that the offense of shooting at another may be committed by a defendant who is
The trial court did not err in denying the motion for a new trial as amended.
Judgment affirmed.