Barnes v. State , 71 Ga. App. 9 ( 1944 )

1. The evidence sustains the verdict.

2. The special grounds of the motion for new trial are without merit for the reasons set forth in the opinion.

DECIDED APRIL 6, 1944. The defendant was convicted of unlawfully shooting at another. His motion for new trial, was overruled, and he excepted. The evidence shows that the defendant and Hoyt Smith were farmers living on adjoining lands. Smith's cow had been going upon the defendant's land and destroying his crops. Before the date of the shooting, the defendant had gone to Smith's house and requested Smith to keep his cow off the defendant's premises. Hot words followed, and Smith invited the defendant to get down from the mule he was riding, and Smith would settle it with him. Smith used abusive and threatening language. The defendant rode away. On the day of the shooting, Smith observed the defendant, armed with a shotgun, standing near the dividing line of the two farms. Smith's cow was near the line, but on Smith's side. Whereupon Smith went to his home a short distance away, procured his gun and went into conversational speaking distance of the defendant. The state's evidence shows that after some words between them, Smith laid his shotgun down and began making a cigarette. While doing so he observed the cow approaching the line in the direction of the defendant's farm; whereupon Smith proceeded to walk in the direction of his cow, and away from the defendant to prevent the cow from crossing the line and going upon the defendant's land. The defendant then said to Smith: "Now I got you and I am going to shoot you." Smith turned his head sideways to face the defendant, and the defendant shot him. The doctor testified in substance that Smith was shot down toward the middle line of his face, on the left side; the greater part of the load going into the posterior triangle of the neck on the right side, some shot entering the left eye. It would not have been possible for the wound to have been made by shooting directly at Smith. It seemed that the whole load was in his face. An officer, who went to the place of the shooting on the same afternoon, testified that he saw blood there, and an empty shell, and also a cigarette leaf. The State introduced other witnesses, who testified to the effect that at the time the defendant shot Smith, Smith had put his gun down and was going in the direction of the cow. There was no evidence of shot marks on the stock of Smith's gun.

In his statement to the jury, the defendant, after relating the difficulty and conversations between himself and Smith before the shooting, further stated that on the day of the shooting he saw the cow in his field, and as he went to get her she crossed over the line; that she had some yearlings with her; that Smith went into his house and came out toward the defendant with a gun and said: "That is the only cow I got, God damn you, I am going to kill you;" that when Smith came up with his gun the defendant shot him; and that "I caught his eye on the gun barrel and I shot him." It was three hundred yards from Smith's house to the place where he was shot. The defendant introduced other evidence of an impeaching nature, and also evidence to the effect that he had visited a justice of the peace in an effort to get some legal protection from the destruction of his crop by Smith's cow. 1. It will readily be seen from the evidence that the jury were fully authorized to return a verdict of illegally shooting at another. The general grounds of the motion for new trial are not meritorious.

2. There are three special grounds.

(a) Special ground 1 assigns error on the following charge: "If you find, in considering the evidence, that there is a conflict in the testimony between the witnesses, or a conflict between the witness or witnesses and the defendant's statement, then I tell you you are the exclusive judges as to the credibility of the witnesses. Error is assigned on this charge, first, because it inferentially withdrew from the consideration of the jury the credibility of the defendant's statement; and second, because it tended to lead the jury to believe that they need not consider the credibility of the defendant's statement. This court stated in Crosby v. State, 43 Ga. App 220 (4) (158 S.E. 633): "The court having correctly charged upon the defendant's statement to the jury, the following excerpt from the charge was not error: `If upon a consideration of the evidence in this case you find there is a conflict in testimony between the witnesses, or a conflict between a witness or witnesses and the defendant's statement, it is your duty to reconcile such conflict or conflicts if you can, without imputing perjury to any witness and without imputing a false statement to the accused. If you can not do that, it then becomes your duty to believe that witness on those witnesses you may think most entitled to belief." This excerpt from the charge, when viewed in the light of the charge as a whole, did not amount to a statement to the jury that if there were conflicts between the defendant's statement and the testimony of any witness or witnesses it would be the duty of the jury to accept and believe the testimony of the witness or witnesses in preference to the statement of the accused.'Eidson v. State, 21 Ga. App. 244 (94 S.E. 73); Tyre v.State, 37 Ga. App. 376 (140 S.E. 527); Jordan v. State,130 Ga. 406 (5), 408 (60 S.E. 1063), and cit." In the instant case, the court charged the law fully with reference to the defendant's statement. When we consider the charge as a whole we find no merit in this ground.

(b) Special ground 2 assigns error on the following charge: "If, after considering all the facts and circumstances of the case, giving to the defendant's statement just such weight and credit as you think it entitled to receive, your minds are wavering, unsettled, and unsatisfied, then that is doubt of the law and you should acquit the defendant, but if that doubt does not exist, then you should convict the defendant." Error is assigned on this charge because it instructed the jury that if their minds were wavering and unsettled, such mental state created a doubt under the law, and it would be their duty to acquit; that the court should have charged that the "doubt" was one as to the defendant's guilt. A charge in almost identical words was held free of error in Dumas v. State,63 Ga. 600 (8) where the court said: "There is no error in charging, `If, after an honest and impartial examination, your minds are wavering, unsettled, unsatisfied, that is the doubt of law and you should acquit; if that doubt does not exist, you should convict.'" Therefore this assignment of error is without merit.

(c) Special ground 3 excepts to the following excerpt from a supplemental charge: "Gentlemen, one thing I wish to call to your attention: in all cases of assault with intent to murder one of the ingredients is the intent to kill." The error assigned is that it had the effect of singling out and particularly calling to the jury's attention the offense of shooting at another, and tended to cause the jury to believe that the defendant was guilty of the offense of shooting at another, for which he was found guilty. To understand the assignment of error in this ground we deem it necessary to state that in the original charge the court evidently overlooked charging the law as to the offense of shooting at another, which under the evidence was in the case. Not to have charged this principle would have been reversible error under the case made by the evidence. The record states that, after having given the original charge, the court requested the jury to retire, and "immediately recalled them." Immediately following the portion of the instruction of which complaint is made, and in connection therewith, the court charged: "Now, should you believe that there was no intent to kill, you should not find him guilty of assault with intent to murder, or should you believe that he shot and was justified, you should not find him guilty. But should you believe under the evidence that there was no intent to kill, or that he shot without malice due to a sudden heat of passion, then, if you do not feel it was justified under the rules I have given you, he would be guilty of the offense of unlawfully shooting at another." The court then proceeded to charge fully the law with reference to shooting at another, which in the first instance had evidently been overlooked. When we consider the excerpt set out in this ground of the motion in connection with the entire charge, the instruction complained of is not subject to the criticism made. The judge has a discretion to supplement his charge. Southern Railway Co. v. Lee,59 Ga. App. 316, 319 (6) (200 S.E. 569). Indeed, it is his duty, upon failure in the first instance to instruct the jury fully concerning the issues involved, to recall the jury and supplement his charge in order to do so. It is not contended that the excerpt is an erroneous statement of the law nor that it was not applicable to the facts. It is our opinion that it was a proper and correct instruction, under the facts of the case, viewed in the light of the original and the supplemental charge. This assignment has no merit.

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.