POPHAM v. STATE, 120 Ga. App. 517 (1969)

171 S.E.2d 388

POPHAM v. THE STATE.

44625.Court of Appeals of Georgia.SUBMITTED SEPTEMBER 11, 1969.
DECIDED OCTOBER 2, 1969. REHEARING DENIED OCTOBER 21, 1969.

EVANS, Judge.

The defendant was tried for assault with intent to murder, convicted of shooting at another, and sentenced to three years in the penitentiary. She appeals from the judgment of conviction and sentence and from the denial of her motion for new trial as amended. Held:

1. Since the evidence shows no assault other than the one consummated by a completed battery, a verdict of simple assault would not have been lawful. Harris v. State, 3 Ga. App. 457
(69 S.E. 127); Kelsey v. State, 62 Ga. 558, 559. Therefore, the trial court did not err in failing to charge the jury on the offense or the punishment for simple, or bare, assault.

2. In the absence of a written request therefor, the trial court did not err in failing to charge on accident or misfortune where this defense was raised solely by the defendant’s unsworn statement. Jordan v. State, 78 Ga. App. 879, 882
(52 S.E.2d 505); Watson v. State, 136 Ga. 236, 239 (71 S.E. 122).

3. The evidence was sufficient to support the verdict, and the general grounds of the motion for new trial are not meritorious. While there is considerable evidence in the record that would warrant a verdict of not guilty, still the jury, as the

Page 518

arbiter of all conflicts in the evidence, resolved such issues against her, hence this court cannot disturb the verdict of the jury. Let the judgment be

Affirmed. Pannell and Quillian, JJ., concur.

SUBMITTED SEPTEMBER 11, 1969 — DECIDED OCTOBER 2, 1969 — REHEARING DENIED OCTOBER 21, 1969 — CERT. APPLIED FOR.
Shooting at another. Floyd Superior Court. Before Judge Scoggin.

Harris Royal, Jackson B. Harris, for appellant.

F. Larry Salmon, District Attorney, for appellee.