Joiner v. State ( 1935 )

Guerry, J.

The defendant was indicted under Park’s Penal Code (1914), § 115(a)—Code of 1933, § 26-1703, for the offense of shooting into an occupied dwelling house. The evidence for the State was substantially as follows: Mr. George Senter testified: “I was in my house when Clay Brookshire came in and I heard a gun fire. I opened the door or the door was opened when Clay came in. I did not see any one fire the gun, but I saw Tom Joiner out there in front of my house with a rifle in his hand. After Brookshire came in three more rifle-shots were fired into the house through the window; one almost struck my wife. Here are the bullets. This shooting was into my house where I live in Whitfield county. . . He said he was going to shoot up my house that night. That was November 29, 1934, that he said he was going to shoot my house, and the shooting occurred that same night.” Clay Brook-shire testified: “I was coming back from town and saw Tom Joiner over in the lumber yard. He was near an oak tree near Mr. Senter’s house. As I went onto the porch of Mr. Senter’s house, Tom Joiner fired his rifle that he had, and the bullet whistled by my head and went into Mr. Senter’s house. . . It was light enough to easily see and recognize Joiner and the rifle.” There was other evidence in substantiation of the above. The evidence amply authorized, if it did not demand, a finding that the house of the prospector was occupied, and that the defendant fired the rifle into it as alleged. Under an allegation in the indictment that the shooting was done with a “gun and rifle,” proof that it was done with a rifle is sufficient. See Burney v. State, 22 Ga. App. 622 (97 S. E. 85), and cit.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur.