Allen v. State , 28 Ga. 395 ( 1859 )

By the Court.

Stephens, J.,

delivering the opinion.

1. The questions put to. the impeaching witness in this «case were excessively leading, and we think, for that reason, were irregular and improper. There can be no good reason for relaxing in favor of an impeaching witness the general rule against the asking of leading questions. This is a ease where it devolves upon the Jury to weigh testimony in a peculiar sense, and it is, therefore, important that the witness should first be left to exhaust bis memory on tbe subject; without the aid of leading, in order that the Jury may se.e how far he speaks from his own memory, and how far from suggestion. This is an important test in weighing the value of testimony.

2. The charge requested by defendant, that he was justified in shooting at the prosecutor after the prosecutor had attempted to shoot him, is wrong in two respects. It assumes that the prosecutor had attempted to shoot him, a fact which was contested in the case, and should have been submitted to the Jury. But it also states the law erroneously. It does not follow that the defendant was justified merely because be shot after the prosecutor bad attempted to shoot him. The prosecutor might have abandoned the combat, and then the defendant clearly would not have been justified in shooting. To constitute a justification, something more must appear than the single fact that the defendant did not shoot until ah attempt had been first made to shoot him.

3. We think it is a most material matter whether the I gun is loaded or not, and how loaded, under an indictment for shooting at another, contrary to the act of 1856. To shoot at implies an aim, and intent to hit, and therefore the nature of the load is important in judging of this intent. If the character of the load at a distance, as, for instance, a mere powder gun at twenty yards distance, renders it impossible that the load could take effect, a reasonable man could not be presumed to intend that consequence. So the nature of the load is an important matter in enabling the Jury to judge whether the defendant merely shoots or shoots at whether he has or has not an intent to hit. This we are satisfied is the sound construction of this act. And for myself, I do not hesitate to say that the act is one which ought to be most strictly construed against the prosecution, and most liberally in favor of the accused. So far from its being a salutary law, as pronounced by the Court below, I regard it as a very hard law, and as involving absurd consequences. The only justification it allows is self defence, which properly cannot include more than defence of life and person. Now, there are many^cases under our law where a man may kill another not in self-defence, as in defence of habitation, and in some cases in defence of property. In these cases he kills and is justified, but if he shoots and misses, he incurs the penalty of this act, according to its strict terms. The penalty falls not on him who shoots and kills, but on him who shoots and misses. Its penalty, therefore, seems to be leveled at bad shooting, and yet no such thing can be presumed to have entered into the intention of the Legislature. This is enough to show that the act is one which calls loudly for the enforcement of that rule which in penal laws construes strictly against the prosecution, and liberally in favor of the accused.

Judgment reversed.