47 S.E.2d 782
32001.Court of Appeals of Georgia.
DECIDED MAY 6, 1948.
1. The evidence sustains the verdict.
2. Special ground 1 is not meritorious for the reasons set out in the opinion.
3. In a case of assault with intent to murder, where the evidence shows mutual combat the court should charge this principle of law without a written request, and it is reversible error not to do so. Otherwise, where, as here, there is no evidence of mutual combat.
DECIDED MAY 6, 1948.
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Assault with intent to murder; from Ware Superior Court — Judge Thomas. February 7, 1948.
Aaron Williams was convicted of assault with intent to murder N. D. Frank, by shooting him with a pistol. An amendment to the motion for a new trial was filed. This motion was overruled, and error is assigned on this judgment. The facts are substantially: Frank was the father of an illegitimate daughter approximately 18 years of age. He had been supporting the mother and the child for a number of years. Frank was taken ill and went to Baltimore for an operation. Before he left, he left his home and his daughter and the mother under the care of the defendant. After his return the mother had moved into the defendant’s house and the daughter was living nearby. The operation which Frank underwent was for some sort of abdominal troubles. At the time of the difficulty he was able to do but very little work. The mother of the illegitimate child had spent some time in Savannah. It seems that the daughter also had spent some time with her there, as well as Frank. On the morning of the difficulty Frank observed the defendant carrying a suitcase of the daughter somewhere. Frank left his place and went to the home of the defendant where Corrinne Williams, the mother of the girl, was then staying. There was a fence in front of the defendant’s house. This fence was about half way between the house and the sidewalk, some six feet from the sidewalk. On the way to the defendant’s home, someone asked Frank how he was feeling. He said very well, except that he had some hell in him. When he arrived in front of the defendant’s house he called for Corrinne Williams. She was in the back part of the house. She did not come out. The defendant came from around the outside of the house to the front opposite Frank who was either on the sidewalk or between the sidewalk and the fence. Frank had his hand in his pants’ pocket. He claims he had his hand there to protect the place of the incision made for the operation. Some words were spoken between them while Frank was on the outside on or near the sidewalk and the defendant was in his yard. They were at least 12 or 15 feet apart. As to just what was said between them, there is some little conflict. At any rate, Frank began to upbraid the defendant for interfering with his daughter, and moving her suitcase preparatory to get
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the mother and the daughter out of Waycross. The Jury authorized to find that Frank told the defendant that if the defendant did not leave the daughter alone there would be hell today. The defendant thereupon stated that he was ready for it then. Thereupon the defendant drew his pistol and began shooting Frank across the fence. Frank was hit in the chest by this shot. Frank turned the defendant again shot him in the arm. Then Frank fell to his knees and the defendant again shot at him, shot hitting the baseboard of the fence. Frank began crawling away on his knees, crawled around the corner of the yard and he was thus crawling the defendant again shot him in the left leg. After this shot Frank made his way to the home of an undertaker nearby, whence he was taken to the hospital unconscious.
The doctor testified as to the seriousness of the wounds which have above described. The evidence does not reveal that Frank had any kind of weapon. It does not reveal that he ever withdrew his hands from his pocket until he got on his all fours crawled away. There was a disinterested eyewitness nearby who in substance testified to the facts as we have above stated, except that he did not hear what was said between the day before the shooting.
The defendant in his statement contended that he shot Frank cause Frank had come to his house and stated that he had hell him that day and stated that if the defendant ever bothered the suitcases again that he, the defendant, would go to hell. The defendant then stated that Frank began pulling his hand out of his pocket; that the defendant did not know what Frank had and that time shot Frank in self-defense. The defendant introduced a number of witnesses as to his reputation for good character. The above is substantially the evidence for both the State and the defendant with the exception of certain details with reference to the description of the premises where the shooting occurred, and whether the defendant asked Frank to leave or go away and Frank refused.
A. B. Spence, Harry M. Wilson, for plaintiff in error.
GARDNER, J.
1. So far as the general grounds are concerned, the evidence is sufficient to sustain the verdict. There are two special grounds, which we will deal with in their order.
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2. Special ground 1 complains of the following excerpt from the charge: “If the jury should believe that the defendant assaulted the person named in the indictment in the manner charged, that the assault was unlawful, malicious, and with a weapon as used was likely to kill.” The error assigned on this charge is that it was an expression of an opinion under the Code, § 81-1104, and invaded the province of the jury. When we view this excerpt with the charge as a whole, there is no merit in this contention. The excerpt is not reversible error for another reason: The defendant did not deny shooting Frank with a deadly weapon. He admitted that in his statement, then he sought to justify himself on the ground that he shot in self-defense under the fears of a reasonable man that Frank was endeavoring to take his life or commit a felony upon him. Counsel for the defendant cites no case similar to the facts here to sustain his contention and we have been able to find no such decision.
3. Special ground 2 assigns error on the ground that the court committed reversible error by failing to charge the law pertaining to mutual combat. There is not any evidence at all either from the standpoint of the State’s evidence or the defendant’s evidence or in the defendant’s statement sufficient to justify a charge on the principle of mutual combat. All the evidence shows that Frank had no weapon at all. It is true that they had heated words before the shooting, but as above stated, they were 12 feet apart, a fence between them, and the defendant did not claim that Frank had any weapon. He did claim that Frank was advancing on him with his hand in his pocket, and moved his hand as if to draw it from his pocket and that thereupon he, the defendant, shot Frank under the principle of law regarding the fears of a reasonable man. The court fully charged upon this principle of law. The jury did not see fit to give credence to the defendant’s contentions. After having read this record carefully, we do not think that by any kind of stretch of imagination is the principle of mutual combat involved. To our minds the evidence is so clear to this effect that it would be of no benefit at all to enter into a discussion of the question of mutual combat on which subject there have been so many decisions by both the Supreme Court and this court. We thoroughly agree with the principle of law advanced by counsel for the defendant
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that if the evidence shows mutual combat it would have been reversible error not to have charged it. The cases cited by counsel for the defendant are along this “if” line. But there is no case cited wherein the facts are in anywise similar to the facts in the instant case. This ground contains no reversible error.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.