McCoy v. State , 74 Ga. App. 889 ( 1947 )

1. The evidence amply supports the verdict on the general grounds.

2. The special grounds are without merit.

DECIDED MARCH 21, 1947. Leon McCoy was found guilty of assault with intent to murder. He filed a motion for a new trial which, as amended, was overruled, and he excepted.

C. A. Roberts, the person upon whom the assault was made, testified: that he was traveling along a certain road about 11 or 12 o'clock at night, in a pick-up truck; that the defendant, apparently without provocation, stepped out into the road, from one side of the road, waved for the witness to stop; that witness did not stop the truck and about the time witness got even with the defendant, the defendant shot Roberts and shot at him again after Roberts had passed the defendant; that no words were spoken; that the defendant shot the witness Roberts on one side of witnesses' head with 28 shot, resulting in putting out one of Roberts' eyes, and inflicting other injuries upon the witness Roberts. Roberts encountered much difficulty in driving the truck away from the scene of the assault, but finally reached help and was taken to a doctor. He further testified that he has lost the sight in the injured eye. Roberts further testified that the defendant got caught with some whisky and accused Roberts of reporting the defendant and that was why the defendant was mad with Roberts.

W. C. Carter, sworn for the State, testified: that C. A. Roberts, the person upon whom the assault was made, and the defendant and others, were all at a beer joint earlier in the evening of the night of the assault and that no words were spoken between the defendant and Roberts; that Roberts left the place after having bought some gasoline, stating that he was going to a place by the name of Hayford's, apparently a short distance away, and that Carter remained at the beer establishment; at this time the defendant and his two brothers were at the beer establishment; Roberts returned to the beer establishment in about an hour or two, and the defendant did not return; that witness Carter did not notice when the defendant left, but "I know he wasn't there. . . when Mr. Roberts came back. . . I talked to Mr. Sumner [and others] probably 30 minutes," at which time somebody said in the presence of witness that Roberts had been shot. Witness walked to the door of the beer establishment, saw that Roberts was slumped over the wheel of his pick-up truck, and that Roberts told witness that Roberts had been shot; witness then took Roberts to a doctor some distance away, where the doctor counted 26 places where Roberts had been wounded by shot.

D. F. Sumner, son of the owner of the beer establishment, testified for the State: that Roberts came by witnesses' father's place of business, left, and returned "an hour or two later" after Roberts had been shot; that the defendant was also present in the beer establishment the night of the shooting; that the defendant left the place of business and witness did not see him for some time, probably "the next day or two."

Hayford Sumner, sworn for the State, testified: that Roberts came alone to the house of witness the night of the shooting; that witness and Roberts talked for about an hour; that approximately three or five minutes after Roberts left witnesses' house, witness heard a shot; that witness did not investigate the shot; that he saw the defendant earlier in the evening the night of the shooting, but not at the same time that Roberts was at the home of the witness.

Major Johnson, a policeman at Swainsboro, sworn for the State, testified: that some five or six months prior to the time of the shooting, the defendant made the statement to the witness that "I am going to get even with Sheriff Hall and C. A. Roberts;" that witness advised the defendant to leave them alone, since the defendant had just gotten out of the penitentiary.

The defendant made a statement in the nature of a general denial of any participation in the shooting, and introduced no witnesses, but placed himself at the Dodge Sumner place at the same time when Roberts was there. We reject the contention of counsel for the defendant that there was not sufficient evidence to sustain the verdict. On the contrary, there was ample evidence to sustain the verdict, and this court is without authority to reverse the mandates of the jury in view of sufficient evidence to sustain their verdict. There is no merit in the general grounds.

2. (a) Special ground 1 assigns error because the court did not inquire as to the relationship of two attorneys who, it is alleged, assisted the solicitor-general in the presentation of the case. Counsel cites Code, § 9-604 as his authority. There was no request at all made to the court, and no objection on the part of the defendant. No authority is cited by counsel to sustain his contention. This ground has no merit.

(b) Special ground 2 assigns error because the court did not charge on motive. There was no written request to so charge. Hence, this ground has no merit. Adams v. State, 125 Ga. 11 (53 S.E. 804).

(c) Special ground 3 assigns error because the court did not charge fully the law applicable to the defendant's statement. It is contended that the court should have instructed the jury, after charging with reference to the defendant's statement, the words, "and acquit the defendant." The court charged fully as to the presumption of innocence, burden of proof, reasonable doubt, the circumstances under which a verdict of not guilty should be returned, and the form of the verdict. Counsel cited in this connection Adams v. State, supra. This case announced no principle to sustain the contentions of counsel. This ground is not meritorious.

(d) Special ground 4 assigns error because the court did not charge, without a request, the law applicable to circumstantial evidence. The verdict was not dependent upon circumstantial evidence. Indeed, it was dependent almost wholly upon direct evidence. This ground is not meritorious.

(e) Special ground 5 assigns error because the State did not produce three doctors who attended the victim after he was shot; and because the court permitted the victim to testify what doctors attended him and what they did and the way of treatment for his gunshot wounds. There was no objection interposed to any portion of the victim's statement. It is elementary that one who is shot may describe his own wounds. Counsel call our attention to the provision of the Code, § 70-203; Gossett v. State,6 Ga. App. 439 (65 S.E. 162), and Wilson v. State, 9 Ga. App. 274 (70 S.E. 1128). These authorities have no application whatsoever to the contentions under this ground.

(f) Special ground 6 assigns error because the constitutional rights of the accused, under Amendment 6 of the Constitution of the United States (Code, § 1-806), were violated. This contention is based upon the general allegation that a witness, Major Johnson, whose name did not appear on the indictment, was sworn as a witness for the State, and testified against the defendant. This ground does not allege any demand for a list of the witnesses whose names appeared on the indictment and made no sort of objection to the witness testifying. This ground has no merit.

(g) Special grounds 7, 8, and 9 are but elaborations of the general grounds and are without merit.

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

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