Guy v. State , 72 Ga. App. 395 ( 1945 )

1. Where the judge charges the jury that the credibility of the witnesses is to be determined by the jury, and there is no request to instruct the jury as to the rules by which to test the credibility of the witnesses, the omission of such instructions is not cause for a new trial.

2. "In the absence of a timely written request, it is not error for the trial judge to omit any reference to a theory of defense raised solely by the statement of the defendant." Wilensky v. State, 15 Ga. App. 360 (83 S.E. 276).

3. The failure of the judge in an assault-with-intent-to-murder case to charge the jury, without request, the provisions of the Code, § 26-1017, will not be reason for granting a new trial, when it appears from the charge that the jury were informed that if they found the contentions of the accused to be true, they must return a verdict of not guilty.

4. "In charging section 70 of the Penal Code [ § 26-1011], failure to explain to the jury the meaning of the word ``felony,' used therein, is not cause for a new trial, in the absence of an appropriate and timely request so to do." Smith v. State, 23 Ga. App. 541 (4) (99 S.E. 142).

5. The judge did not err in charging the jury as follows: "If you should believe the defendant assaulted the person named in the accusation in the manner charged, that the assault was unlawful, malicious, and with a weapon that, as used, was likely to kill, and that the assault was made with the intent and purpose on the part of the assailant to kill the person named in the accusation, then and in that event, the jury would be authorized to find the defendant guilty of the offense of assault with intent to murder, and the form of your verdict would be, ``We, the jury, find the defendant guilty of the offense of assault with intent to murder.'"

6. Where the judge charged the jury that, "The law you take from the court as given you in charge, and the facts you get from the witnesses who appear and testify and from the statement of the defendant, and to the one you apply the other and make your findings," a new trial is not required on the ground that it was confusing and misleading to the jury as to what the court meant by the statement, "and to the one you apply the other and make your findings."

DECIDED APRIL 20, 1945. The evidence considered in its most favorable light in upholding the verdict was in part as follows: Sam Lane, the person alleged to have been shot, testified that the defendant, Emory Guy, had used vile and profane words to him while they were in a certain poolroom; that as a result thereof he slapped him once and the proprietor of the poolroom, Joe Logan, put him out, that is, he strongly insisted that he leave, which he did. "I [then] went up the street. Emory [Guy] went up there and passed me and waited on me. That was about twenty minutes later. He passed me right there by the railroad where he come from John Logan's place, and he was riding in a car, and he stopped the car further on down the street. I kept on walking down the street. He stopped the car on the opposite side of the street from me. When I got down there, he opened the car door and got out and started across the street where I was. When he got about the middle of the street he started shooting with a pistol. He didn't say anything when he was shooting, or before he shot. While he was shooting he said a black so and so he was going to kill him. He called me a vile name and said he was tired of these black niggers messing with him. He shot twice. The first shot struck me here in the side of my chest, in the side up under my arm. I was on the edge of the street and he was in the middle of the street when he shot me. The bullet went in and came out of its own accord. When he shot me the first time, I ran on in to him and grabbed him and he shot the second time. I don't know what became of that shot. I had his arm and it went wild. I took the gun away from him, by wrenching it out of his hand. I throwed it down under a car where he could not reach it. I just held Emory until the sheriff got there. A policeman came down in a few minutes, and he got both of us and I went to a doctor. That was in Mitchell County. I have been knowing Emory Guy for four or five years. I heard about him getting into a bad car wreck two or three years ago and he has been crippled for the last three or four years and can only walk around with a stick, and he limps." The chief of police testified, in effect, that when he got to the place of the occurrence, Lane was holding the defendant down; that he arrested the defendant, and sent Lane to get his wounds dressed. Douglas Welch, a witness for the State, testified in part as follows: that he was sitting in his car when the defendant drove up and stopped about twelve feet from him; that the defendant was the aggressor, and that Lane, after being shot at, went to the defendant, threw him down, took his pistol away, and held him down until the chief of police arrived. Joe Logan, the only witness for the defendant (and who was not present at the scene of the shooting) testified that Lane slapped the defendant while he was in his poolroom; that he did not know why he slapped him; and that he put Lane out by asking him to leave, which he did. "He did not leave right then. When we were talking Emory was coming out the door, and I heard him ask him why he slapped him, was it because he had the advantage, and he said, ``yes.' and Emory asked him if he would know him if he saw him again and he said, ``yes.' That was after he passed by him. Emory got in his car and drove off and left him there. That is all I know." The defendant in his statement to the jury said that after Lane had slapped him in the poolroom, he, the defendant, was the first to leave, and that Lane followed him up the street; that when he stopped his car, Lane approached him in a threatening manner, and that, being a cripple he was unable to defend himself and shot at Lane, as a matter of self-defense, in order to keep from being injured by him. The defendant was convicted of an assault with intent to murder. He moved for a new trial, which was overruled, and he excepted. 1. The judge charged the jury in part as follows: "You may believe part of the statement of the defendant and part of the testimony, you being the sole and exclusive judges as to whom you will believe and as to what you will believe." The plaintiff contends that, "when the court attempted to charge any of the law regarding the credibility of witnesses, he was under the duty to fully instruct the jury as to all the phases regarding the credibility of a witness." The excerpt complained of, in so far as it related to witnesses, was, in effect, charging the Code section that the "credibility of a witness is a matter to be determined by the jury." § 38-1805. "There being no request to instruct the jury as to the rules by which to test the credibility of witnesses, the omission of such instruction is not cause for a new trial." Freeman v.Coleman, 88 Ga. 421 (3) (14 S.E. 551); Pressley v.State, 132 Ga. 64 (63 S.E. 784); Sconyers v. State,67 Ga. App. 902, 906 (21 S.E.2d 504). This ground is not meritorious.

2. In special ground 2 the defendant contends that it was reversible error for the court to fail to charge the law of voluntary manslaughter based on mutual combat. It seems to us that there was no phase of the evidence which would authorize a finding of mutual combat. The evidence was to the effect that at the time of the shooting the defendant was himself the aggressor, and that Lane advanced toward him only after being shot at; that he took the pistol away from him and held him down until the police arrived; that he did not otherwise strike or harm the defendant, and that his intention was not to fight or enter a combat, but was to resist being injured by the defendant. Even if the defendant's statement would have authorized a finding that there was a mutual combat, the Supreme Court "has frequently decided that the judge may construct his charge upon the various issues made by the evidence; and that if a defense is set up in the statement alone, it is not error for the judge to omit submitting the law appropriate to such defense, in the absence of a timely written request." Watson v. State, 136 Ga. 236,239 (71 S.E. 122); Carter v. State, 15 Ga. App. 343 (83 S.E. 153); Wilensky v. State, supra. The substantial law covering the issues made by the pleading and the evidence, which is the law of an assault with intent to murder and the law of shooting at another, was given. Savannah Electric Co. v.Jackson, 132 Ga. 559, 562 (4) (64 S.E. 680); Duhart v.State, 18 Ga. App. 287 (89 S.E. 343); Ferguson v. State,17 Ga. App. 811 (88 S.E. 589). This ground is not meritorious.

3. Special grounds 3 and 4 contend that nowhere in the entire charge is there any suggestion to the jury under what circumstances they would be authorized to find that the defendant was justified in his acts. The Code, § 26-1017, provides: "The homicide appearing to be justifiable, the person indicted shall, upon the trial, be fully acquitted and discharged." There was no request to charge, and the failure of the judge, in an assault-with-intent-to- murder case, to charge the jury the provisions of this Code section will not be reason for granting a new trial, when it appears from the charge that the jury were informed that if they found the contention of the accused to be true they must return a verdict of not guilty. Nix v. State,120 Ga. 162 (3) (47 S.E. 516); See also Carter v. State, supra; Wilensky v. State, supra; Duhart v. State, supra;Ferguson v. State, supra. The failure to charge the provisions of this Code section without request was not reason for granting a new trial in the instant case.

4. In special ground 5 of his motion for new trial, the defendant seems to concede that the following rule, to wit: "In charging section 70 of the Penal Code [ § 26-1011], failure to explain to the jury the meaning of the word ``felony,' used therein, is not cause for a new trial, in the absence of an appropriate and timely request so to do," controls the exceptions in this ground adversely to him, as there was no written request to so charge. Smith v. State, supra.

5. In special ground 6 the following excerpt from the charge is assigned as error: "If you should believe the defendant assaulted the person named in the accusation in the manner charged, that the assault was unlawful, malicious, and with a weapon that, as used, was likely to kill, and that the assault was made with the intent and purpose on the part of the assailant to kill the person named in the accusation, then and in that event, the jury would be authorized to find the defendant guilty of the offense of assault with intent to murder, and the form of your verdict would be, ``We, the jury, find the defendant guilty of the offense of assault with intent to murder.'" The defendant contends that this excerpt was erroneous, in "that it left out one of the essential elements in determining whether or not the defendant would be guilty of assault and intent to murder. The part omitted is as follows: ``Without justifying or mitigating circumstances.'" The excerpt excepted to is almost in the language of this court in Reddick v. State, 11 Ga. App. 150 (2) (74 S.E. 901), and complies with the rule there stated. See also in this connection, Shelton v.State, 11 Ga. App. 148 (74 S.E. 846). This ground is not meritorious.

6. In special ground 7 the charge excepted to is as follows: "I charge you further, gentlemen, that you are the judges of both the law and fact in criminal cases. The law you take from the court as given you in charge, and the facts you get from the witnesses who appear and testify and from the statement of the defendant and to the one you apply the other and make your findings." The defendant contends that this excerpt was erroneous "because it was confusing as to what the court meant by the statement, ``and to the one you apply the other and make your findings.'" Whether he meant that they should apply the statement of the defendant to the law, or the facts to the law, or the law to the facts, we think that it is clear that the jury understood the charge to mean that they, the jury, were to apply the law to the facts as they got the facts from the evidence and the defendant's statement. This ground is without merit. Green v.State, 52 Ga. App. 290, 293 (183 S.E. 204).

7. The evidence authorized the verdict.

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