Beasley v. State

Jordan, Presiding Judge.

The defendant, under an indictment of assault with intent to murder, to the effect that on February 25, 1969, he did assault the victim with a pistol and did shoot him, with the intent to murder, was convicted of the offense of shooting at another. His motion for new trial having been overruled, he appeals from the judgment of conviction and sentence. Held:

1. The substantive criminal law involved is that in effect before July 1, 1969. The court did not err in failing to instruct the jury on assault and battery as a lesser offense. Ridley v. State, 53 Ga. App. 220 (185 SE 376); Johnson v. State, 75 Ga. App. 586 (1) (44 SE2d 139).

Under the evidence adduced in the present case it is undisputed and admitted that the defendant did shoot the victim, and that he intended to shoot at him, thus demanding a finding of guilty of shooting at another, absent any intent to kill, unless the jury chose to adopt that version of the occurrence which might disclose self-defense or justification and thus require acquittal of any offense involving assault or battery. Under these circumstances the charge as given, specifically limiting the lesser included offense to that of shooting at another,' was properly tailored to the indictment and evidence. In this connection, see Hart v. State, 55 Ga. App. 85 (189 SE 547); Jordan v. State, 78 Ga. App. 879 (52 SE2d 505); Pennington v. State, 117 Ga. App. 701 (161 SE2d 327).

2. The court, having informed the jury that the jury could recommend misdemeanor punishment, was under no obligato define the meaning of misdemeanor, or the punishment which the court could impose for a misdemeanor. See Allison v. State, 110 Ga. App. 266 (2) (138 SE2d 335); Sparks v. State, 121 Ga. App. 115 (2).

Submitted February 3, 1970 Decided March 4, 1970. Marshall L. Fountain, for appellant. II. B. Thompson, District Attorney, for appellee.

.3. The evidence authorized the verdict.

Judgment affirmed.

Eberhardt and Pannell, JJ., concur.