52 Ga. App. 70 | Ga. Ct. App. | 1935
Wilbur Woodard was convicted of assault with intent to murder, with a recommendation that he be punished as for a misdemeanor, which recommendation the judge followed, and gave defendant the alternative of paying $100 including the cost, or serving 10 months at the State farm. His motion for new trial was overruled, and he excepted.
1. The evidence for the State was in effect as follows: Several persons, including Rudolph Morgan (the person alleged to have been shot), were in an oak ridge cutting wood, when the defendant Wilbur Woodard came up with a single-barrel shotgun, saying he was rabbit-hunting. Glenwood Dowling who was present, said, “Yonder comes Willard.” The defendant’s name is Wilbur, but he has a brother-whose name is Willard. When Dowling made this remark the defendant drew the gun on him and asked him to take it back, saying at the time, “You don’t believe I have a shell in it, do you?” Then he took the shell out and showed it. Later the defendant asked Rudolph Morgan if he had a firecracker. Morgan replied that he had not. The defendant then said he would “make the fire fly from my” (a vulgar and unprintable word), and shot Rudolph Morgan. “Before the shooting everybody was in a good humor, laughing and talking, and we hadn’t fell out with each other the whole morning. The firecracker — he thought Rudolph had a firecracker. He told him he would make fire fly with the gun. After he was shot he just stood there, and my brother Hugh went to him, and they put him in a wheelbarrow and this boy [the defendant] rolled the wheelbarrow and helped take him to the house.” The defendant asserted that the shooting was accidental. The jury having found the defendant guilty and the judge having approved their finding, we do not feel authorized to grant a new trial on the ground that the evidence does not support the verdict.
2. In his motion for new trial the defendant contends that the court erred in the following charge to the jury: “An assault with intent to murder, gentlemen, is an assault with an instrument that, in the manner it is used at the time, is a weapon that is likely to kill, and under circumstances that if death had resulted from such assault it would have been murder,” for the reason that malice is never presumed in assault with intent to murder. The case of Emanuel v. State, 43 Ga. App. 339 (158 S. E. 761) is relied on.
Judgment affirmed.