Lanier v. State

Luke, J.,

dissenting. I cannot agree to a judgment of affirmance in this case. The defendants were charged with the offense of assault with intent to murder. In my opinion the evidence for the State, if believed by the jury, demanded a verdict of guilty. Also, I think, that the evidence for the defendants clearly established an intention to kill, but, if believed by the jury, justified 'the defendants in their act of shooting with intent to kill. The judge charged the jury the law as to shooting at another not in defense. The defendants complained of this charge upon the ground that the evidence did not authorize it. As I view the evidence, it either demanded a verdict of guilty of assault with intent to murder or a verdict of not guilty, upon the theory that the defendants were justified. Therefore, in my opinion, the statutory offense of shooting at another was not involved, and it was error for the court so to charge the jury. The issue was clear cut, and, in my opinion, a charge upon the statutory offense of shooting at another misstated the issue, and upon this confusion the jury rendered a verdict for this offense. See Coney v. State, 101 Ga. 582 (28 S. E. 918); Lanier v. State, 106 Ga. 368 (32 S. E. 335); Tyre v. State, 112 Ga. 224 (37 S. E. 374). It was therefore, in my judgment, reversible error for the court to charge the law of shooting at another.