15 Ga. App. 445 | Ga. Ct. App. | 1914
Lead Opinion
According to the evidence of the only two witnesses for the State, about 10 o’clock on the night of December 20, 1913, in the town of DeSoto, in Sumter county, J. C. Harp was on his way home, when he overtook his brother, H. A. Harp, a marshal of the town, not then on duty, and they walked on together. As they approached the home of J. C. Harp they heard loud cursing, and when they arrived on the scene they found the defendant, Tim Swain, standing alone, by the side of the garden at the edge of the yard and close to the house, pouring out a stream of profanity, apparently directed at no one in particular, but perhaps intended as an attempt on his part to express to the circumambient air alone an unfavorable opinion of the universe at large, which for the time being he appeared to entertain. One of the witnesses said, “Tim didn’t seem to be cursing us, didn’t seem to be cursing anybody; he was just drunk and cursing;” and the other witness said that the defendant “was there at the house cursing, was just cursing at random.” According to the testimony for the State, when the two witnesses approached the defendant, J. C. Harp asked him “what he was doing cursing there,” and “if he didn’t know he lived there,” and, when the defendant answered “Yes,” told him that he could not curse there; whereupon the defendant said he “would do as he damned pleased about that,” and when J. C. Harp replied, “You had better be doing it pretty quick, because you have got to leave here, you can’t stand here and curse this way,” the defendant
There was no testimony in behalf of the defendant. In his statement at the trial he admitted that he fired the pistol, but said that when he shot, he shot downwards, and that he did not fire his pistol until after he was struck in the head. He did not claim that at the time he fired the two shots, either J. C. Harp or H. A. Harp was pursuing him or making any threatening demonstrations against him; and from his statement it was not apparent to him, at the
According to the' testimony for the State, the defendant committed an assault and battery on J. C. Harp, when he “moved up to” him and “grabbed hold of him,” which J. C. Harp had the right to repel with such force as might -be necessary; and what J. C. Harp was authorized to do in resisting this assault H. A. Harp was likewise authorized to do in defense of his brother, if at that exact time it appealed to him to be necessary. Even if the assault on the defendant by J. C,. Harp or H. A. Harp (whichever one of the two “shoved” or struck him first) was not justified by the conduct and the language of the defendant, it did not authorize or justify him in firing upon them with a deadly weapon, when there was no reason for him to apprehend at the time that any necessity whatever existed to thereby protect himself. Eegardless of the preceding provocation, there was, at the time these two shots were fired by the defendant, both under the evidence and under the defendant’s statement, 'no sufficient justification therefor, notwithstanding the defendant indicated, in his rambling and largely irrelevant statement, that he was ápprehensive of danger to himself, and fired the pistol “downward,” on the idea, as expressed by him, that “If I don’t kind of defend myself, they will catch me sure enough.” The evidence discloses that he was drunk, that there was no real danger confronting him at the time he fired the pistol, and that there was no apparent danger then threatening him; and certainly he could not be justified in firing a deadly weapon at another merely because he entertained, not the fears of a reasonable man, but the unreasonable apprehensions or hallucinations of one under the influence of intoxicants. It is unnecessary to discuss further the general grounds of the motion for a new trial, since it is apparent from the record that there was ample evidence to sustain the verdict; and this too is candidly admitted by able counsel for plaintiff in error.
1. Objection is urged in the first ground of the amendment to the motion for a new trial, because the court submitted to the consideration of the jury the law touching the right of one brother to defend another (in the event they should find that the defendant made an assault upon J. C. Harp), and instructed them that H. A. Harp would have the right to use such means and force to protect
2. The next ground of the motion for a new trial complains that the court instructed the jury that should they find the defendant guilty of the offense of assault with intent to murder, they had the authority, if they saw proper to do so, to recommend a misdemeanor punishment, and in that event the form of their verdict' would be, “We, the jury, find the defendant guilty and recommend misdemeanor punishment,” and that in the event that the court approved the recommendation, a misdemeanor’ punishment ’would be' inflicted instead of a'felony punishment: : “If you do' 'not believe he- is guilty of that offense, or if you have a reasonable doubt in your mind of that, then acquit him of assault with intent to múr:' der, and then you may inquire into the lower grade of offense in regard to which I have charged you, that'of shooting at another; and if yon determine that the defendant is guilty off the offense of
It is contended by counsel for plaintiff in error, that while the court properly instructed the jury as to the recommendation for a misdemeanor punishment in the event they should find the defendant guilty of assault with intent to murder, the court did not properly instruct them as to the recommendation in the event they should find (as they did) that he was guilty of shooting at another; for the reason that the court failed to instruct them specifically that if they found the defendant guilty of shooting at another, and recommended that he be punished as for a misdemeanor, a misdemeanor punishment would be inflicted instead of a felony punishment, in the event that the court approved this recommendation. It is contended that the instruction given did not plainly inform the jury that the recommendation that the defendant be punished as for a misdemeanor would not be effective, should they find the defendant guilty of shooting at another, unless approved by the court. It appears to us that any jury of ordinary intelligence would readily understand from the charge objected to that they had the right to recommend that the defendant be punished as for a misdemeanor in case they found him guilty of the charge of shooting at another; and had the judge omitted entirely to instruct the jury that their recommendation would only be effective if approved by him, this could have worked no harm to the defendant, under the circumstances of the case, since the jury would have been left to infer that such a recommendation would be binding upon the court, whether approved by him or not, as he plainly instructed them that they had the “right” to add a recommendation that the defendant be punished as for a misdemeanor, and it appears that the jury declined altogether to recommend the defendant, but found him guilty of shooting at another, without making any recommendation.
Concurrence Opinion
concurring specially: I concur with great doubt as to the first special assignment of error, and especially for the reason that, were I to disagree, the result would be the same,—the judgment in that event being affirmed by operation of law.