88 Ga. App. 778 | Ga. Ct. App. | 1953
Special grounds 4, 5, and 6 of the amended motion for new trial complain of the following excerpt from the charge of the court: “Intent to murder is shown by the evidence, by what kind of instrument was used, and how it was used, whether it was used to shoot at a man,” As stated in Manders v. State, 69 Ga. App. 875 (4) (27 S. E. 2d 105): “In a trial for assault with intent to murder, the question of intent is for the jury. To authorize a conviction for an assault with intent to murder, a deliberate intent to kill must be shown at the time of the assault. Such intent may be inferred by the jury from the nature of the instrument used in making the assault, the manner of its use, the nature of the wound inflicted, and the duration of the resulting injuries. Reece v. State, 60 Ga. App. 195 (3 S. E. 2d 229).” Intent to kill is a matter for the determination of the jury. Jackson v. State, 56 Ga. App. 374 (1) (192 S. E. 633); Griffin v. State, 50 Ga. App. 213 (1) (177 S. E. 511). There was testimony as to the weapon used (a shotgun), the method of its procurement and use, and the distance between the victim and his assailant at the time of firing, from which circumstances the jury would have been enabled to reach a conclusion as to the defendant’s intent even in the absence of testimony as to the size or duration of the wounds actually inflicted. Accordingly, the defendant’s contentions that the charge as given was a conclusion of fact and as a matter of law removed from the jury the question of the defendant’s intent, to his prejudice, is without merit.
The other special grounds relate to a recharge by the court, after the jury had been out for some time and had returned with a request to charge on how malice could be proved. The court then charged in part: “Malice may be implied where no considerable provocation appears, but where all of the circumstances show an abandoned and malignant heart, and the law says that, when a man shoots another with a deadly weapon, that is sufficient evidence of malice; the use of a deadly weapon, when used in a certain given case, is such a weapon that, when used in the manner it was used, is a weapon likely to produce death, but the law goes further and says that when you shoot at d man with a pistol, within the range of the pistol, then there is malice; that’s all the malice that is necessary. ‘Malice aforethought’ is just an expression; you can have malice, do the killing, and regret it immediately afterwards, and still it is malice.” (Emphasis added.) Within a few minutes after this recharge the jury returned with a verdict of guilty, which action raises the inference that the previous deliberations had been between verdicts of either shooting at another or “not guilty” on the one hand, and the verdict as returned on the other. It should be noted that the court properly charged on the weight to be given the defendant’s statement (Code § 38-415) and the doctrine of reasonable doubt, but did not charge at all on self-defense, justification, or reasonable fears as relating to these defenses.
As we view the case, it was the combination of the recharge on malice in connection with the complete failure to charge on
The trial court erred in denying the motion for new trial as amended.
Judgment reversed.