DocketNumber： 45575
Citation Numbers： 122 Ga. App. 482, 177 S.E.2d 493, 1970 Ga. App. LEXIS 915
Judges： Whitman
Filed Date： 9/22/1970
Status： Precedential
Modified Date： 11/7/2024
The defendant-appellant, Grover Williams, Jr., was indicted and tried on two counts simultaneously. Count one was for aggravated assault upon one Daniel Gibson by shooting him with a pistol with intent to kill. Count two was for aggravated assault upon one William Bridges by shooting him with a pistol with intent to kill. The jury found Williams "guilty” on count one and "not guilty” on count two.
The appeal is from the denial of defendant’s motion for new trial. The enumeration of errors is as follows:
"(1) The court erred in overruling and denying appellant’s motion, as amended, for a new trial. (2) The court erred as a matter of law in not vacating and setting aside the verdict of the jury on count one (1) of the indictment and entering a judgment of acquittal on said count on the ground that the verdict on count one (1) is inconsistent with and repugnant to the verdict on count two (2). (3) The court erred as a matter of law in not vacating and setting aside the verdict of the jury on count one (1) of the indictment and entering a judgment of acquittal on said count on the ground that the verdict on count one (1) is violative of appellant’s constitutional right to due process of law.”
The transcript of evidence and proceeding reflects the following: Several people were in the back yard of a "double tenant” house on Royal Street in College Park, including Daniel Gibson and William Bridges. It was "first dark” and they were laughing and talking when Williams came around. Gibson testified that some words were said between him and Williams; that Williams "went in his pocket and popped a knife open and drawed it back like that — .” Gibson further testified that he was within Williams’ "stabbing range”; that he (Gibson) had a pistol in his pocket and pulled it out where Williams could see it; and that Williams put away the knife and left. Gibson then testified that a short while later, about thirty minutes, he saw Williams again. He further testified: "Q. And on the second occasion when you saw him, what were you doing? A. Getting up off the floor after he shot me. Q. Well, prior to having been
The testimony further shows that the bullet went through Gibson’s face, knocking out two or three teeth; that it knocked him down on the floor of the porch. Gibson testified that he never lost consciousness. He testified that Williams had a pistol and he saw fire jumping out of the barrel when he turned around and got shot. Gibson also testified that more than one shot was fired.
William Bridges testified that he saw Gibson come in the yard and then leave and then come back about 15 or 20 minutes later; that he (Bridges) was sitting all the while on the porch on a stool besides a chair. He testified as follows: "Q. What happened the second time you saw Glover Williams? ... A. Well, the second time I saw Glover Williams I just saw fire coming out of a gun. I didn’t see him when he come back to this place the second time. Q. What was happening when you saw him? A. It was shooting going on when I saw him. Q. Was Glover Williams shooting? A. Yes, sir, he was shooting. Q. And where was he in relation to where you were? A. He was out in the yard and I was on the porch. Q. Did you get shot that day? A. Yes, sir. Q. Where? A. In the shoulder. Q. Do you know who shot you? A. I could’t say for definite who shot us because I don’t know who done the shooting. Both of them had guns now and whether both of them shot or not I can’t say. I don’t
Bridges also testified that he heard Daniel Gibson curse Glover Williams that night.
Another witness, Nathaniel Cartel4, testified he saw defendant
1. With regard to the first enumeration of error, the appellant has limited argument in his brief to the general grounds of his motion for new trial, contending therein that the facts shown from the transcript of evidence are not sufficient to establish a suspicion of guilt of the appellant; that unexplained and suspicious circumstances are not sufficient to convict a person of a felony; and the verdict of the jury was contrary to and against the weight of the evidence. The only question, therefore, is whether there is any evidence of every element necessary to convict for the offense charged. Our review of the evidence shows that the jury’s verdict of "guilty” on count one is amply supported. The trial court did not err in overruling the motion for new trial so far as its general grounds are concerned.
2. The second and third enumerations (see above) are considered together. It is argued that since both counts grew out of the same transaction and the same evidence was relied upon by the State to support each count, the acquittal on one count and conviction on the other is inconsistent and the conviction is void for repugnancy. In Kuck v. State, 149 Ga. 191 (99 SE 622), cited by appellant, where the defendant was charged in one count of selling spirituous liquors, etc., and in another count that he did on the same day possess spirituous liquors, etc., and the same evidence was relied on to convict under both counts, it was held that a verdict finding him guilty of selling and not guilty of possessing was void for repugnancy. The same result was reached in Davis v. State, 43 Ga. App. 122 (157 SE 888), also cited by appellant, where the defendant was found guilty, of transporting liquor but not guilty of possessing it. In these cases the defendants had to be guilty of "possessing” or guilty of neither. The same is not true in the case sub judice. In making up their verdict it is the prerogative of the jury to believe all or part or none of the testimony of the witnesses. They may
Judgment affirmed.