Harris v. State , 74 Ga. App. 386 ( 1946 )

The evidence authorized the verdict, and the denial of a new trial was not error.

DECIDED OCTOBER 8, 1946. The defendant was tried on an indictment which charged him with the offense of assault with intent to murder, in that in Cobb County, Georgia, on July 22, 1945, he unlawfully, and with malice aforethought, made an assault upon Ed Morris with a certain pistol, which was a weapon likely to produce death, and did then and there, not in self-defense, nor under circumstances of justification, shoot Ed Morris, with the intent to kill and murder said Morris. Upon the trial, the accused was convicted of unlawfully shooting at another; his motion for a new trial was denied, and that judgment is assigned as error.

As stated by counsel for both parties, the only question here presented is whether the evidence in this case authorized the verdict. Under the evidence and the defendant's statement to the jury, the questions as to whether the shooting by the defendant was justified, as being in self-defense or under the fears of a reasonable man, or whether the shooting was not justified in that it was not in self-defense, nor under circumstances that would cause a reasonable man to believe that a felony was about to be committed upon him by the person shot, were for the determination of the jury, under proper instructions by the court. And the court did properly instruct the jury, as shown by the fact that no exception was taken to its charge.

"Neither malice nor deliberation is essential to the unlawfulness of the shooting. The shooting might be done under considerable provocation, and in the sequel of a combat in which the prisoner was blameless, and still be unlawful." Hadley v.State, 58 Ga. 309 (4). The evidence was somewhat conflicting, and possibly would have authorized the defendant's acquittal, but it also authorized the verdict returned; and, that verdict having been approved by the trial judge, this court is without authority to reverse the judgment.

The denial of a new trial was not error.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.