Lamar v. State , 76 Ga. App. 218 ( 1947 )

1. The evidence beyond question supports the verdict for shooting at another.

2. Where an indictment charges assault with intent to murder, if there be any erroneous charges relative to self-defense, actual or apparent, these alleged errors will not be considered where the verdict is for shooting at another. In such event the failure to convict of assault with intent to murder is an acquittal of that charge which involves malice, and usually self-defense. The verdict for the offense of shooting at another does not involve the principle of self-defense, or malice, but is based on an entirely different principle of law.

DECIDED DECEMBER 2, 1947. The defendant was indicted for the offense of assault with intent to murder by shooting one Hugh Williamson with a pistol. He was convicted of the offense of shooting at another. The defendant duly filed his motion for a new trial on the general grounds and by amendment thereafter added four special grounds. Briefly, the evidence shows that the defendant and the one he shot and others were engaged in gaming with cards. Both the defendant and the one he shot had pistols. During the progress of the game there was drinking also. The defendant and the victim became engaged in a quarrel concerning the winnings. The State's evidence showed that the defendant, without excuse, shot Williamson as Williamson was handing the defendant some money which was won by the defendant. Thereafter, pistol shots were exchanged by each of them at the other. The jury returned a verdict of "shooting at another" and fixed the punishment at not less than two nor more than two years. The amended motion for a new trial was overruled and the defendant assigns error here on that judgment. 1. There is no contention here that the evidence does not support the verdict found, but it is contended that the charge of the court requires a reversal. We will look into this.

2. Counsel for the defendant states that the special grounds "are more or less related and will be discussed and dealt with en masse."

(a) The first special ground assigns error on the excerpt from the charge to the effect that one who kills another not to prevent a wrong but for revenge, is guilty of murder.

(b) The second special ground assigns error upon an excerpt to the effect that where one kills another under the fears of a reasonable man, it must appear that the party killing really acted under such fears and not in a spirit of revenge;

(c) That such fears of the slayer must be those of a reasonable man, one reasonably self-possessed and not those of a coward;

(d) That if the circumstances are sufficient to excite the fears of a reasonable man, the killing would be attributable to such fears in the absence of proof to the contrary, and if the accused acted under such fears and not in a spirit of revenge.

When these isolated pictured excerpts are viewed in the light of the whole charge, the assignments of error thereon are not meritorious. But there is another principle of law which prevails even in an event where if the assignments of error on the excerpts or either of them were meritorious they would afford no ground for reversal. That principle is this: The defendant was on trial for assault with intent to murder. This offense involves malice. The defendant was acquitted of this offense. If there had been any error in the charge on assault with intent to murder, it would be harmless error where, as in the instant case, the defendant was convicted of shooting at another, which involves no malice. Where one is accused of murder, which involves malice, and is convicted of voluntary manslaughter under either of its phases, any erroneous charge concerning the offense of murder will not be considered. So therefore, where one is charged with assault with intent to murder, which involves malice also, and is convicted of shooting at another, which involves no malice, any erroneous charge, and there is none in this case, on assault with intent to murder, presents no reason why a verdict for the offense of shooting at another, which does not involve malice, should be set aside. There are numerous decisions to this effect by both the Supreme Court and this court. It is useless to cite them. We will, however, call attention to Griggs v. State,38 Ga. App. 258 (2) and Haney v. State, 64 Ga. App. 396,402. As to the contention that the court erred in its reference to the fact that the circumstances must be sufficient to excite the fears of a reasonable man, and one reasonably self-possessed, and not the fears of a coward, see Anderson v.State, 117 Ga. 255 (3). See also Coleman v. State,141 Ga. 731 (5); Smoot v. State, 148 Ga. 306 (2). On these propositions contained in these special grounds we could cite many other controlling authorities if need be to the effect that the court committed no reversible error in either of them, even though the defendant had been convicted of assault with intent to murder rather than the lesser offense of shooting at another.

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

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.