Opinion
39016.
DECIDED SEPTEMBER 15, 1961.
Shooting at another. Early Superior Court. Before Judge Geer.
Phillip Sheffield, for plaintiff in error.
Joe M. Ray, Solicitor-General, contra.
A person is guilty of the statutory offense of shooting at another when he, without justification, shoots at another, without the intention of committing murder.
DECIDED SEPTEMBER 15, 1961.
Winston Perry was indicted in the Superior Court of Early County for the offense of assault with intent to murder and was convicted of shooting at another.
It appears without dispute from the evidence that the defendant shot one Tommy Styles in the kneecap of his right leg. The statement of the defendant, which is supported by evidence adduced in his behalf, is in part as follows: "I told her again to `let's go' and she went to walk on then and Tommy reached down in his left pocket and pulled out something — I don't know what it was he pulled out — and I walked on over to the car then and got my gun and walked back up about as close as from her to that chair there and he just kept walking on and so I told him not to walk on up on me and he just kept walking, so I shot him and I got in my car then and left. I wasn't trying to kill him or nothing — I didn't want to bother him as it was — but I wasn't going to let him get up on me because I didn't know what he had — whether it was a pistol or a knife or what."
The judgment under review is the denial of the defendant's motion for new trial on the general grounds, it being the contention of the defendant that the evidence demanded a finding of guilty of the offense of assault with intent to murder or the acquittal of the defendant by reason of self-defense, but did not authorize the verdict rendered.
As stated in Fallon v. State, 5 Ga. App. 659 (1) ( 63 S.E. 806): "A person is guilty of the statutory offense of shooting at another when he, without justification, shoots at another, without the intention of committing murder; and this lack of intention to commit murder may exist from the fact that he shot without any specific intent to kill, or from the fact that if death had ensued from the wound, the homicide, under circumstances surrounding it, would not have been murder, but would have been manslaughter in one of its grades. (a) If death ensues from a wound inflicted by a deadly weapon used in a deadly manner, the law presumes that the person killing was possessed of a specific intention to kill; but if death does not ensue, there is no such presumption. (b) If it appears that the defendant maliciously shot the prosecutor, it is ordinarily a question for the jury whether he is guilty of assault with intent to murder, in that he intended to kill, or guilty of the statutory offense of shooting at another, in that he intended to inflict a lesser injury."
"The offense of shooting at another may be committed by a defendant who is acting under fears, although they are not the fears of a reasonable man as defined in Code § 26-1012, and that an unreasonable or delusory fear, while not that of a reasonable man and therefore not sufficient to constitute justification, may negative the idea of malicious and intentional wrongdoing. The effect of such finding on the part of a jury would be acquittal of the charge of assault with intent to murder, since the element of malicious intent to kill would not be present." Saylor v. State, 93 Ga. App. 895, 898 ( 93 S.E.2d 196). "While a conviction of the offense of shooting at another is not legal where the evidence as a whole shows that the defendant deliberately shot the prosecutor, either maliciously or else justifiably, yet this is not true where, under any phase of the evidence, a shooting unlawful but not malicious can be inferred." Chester v. State, 3 Ga. App. 332 ( 59 S.E. 843).
Under the defendant's statement and the evidence adduced in his behalf, the jury was clearly authorized to find that the defendant shot Tommy Styles without justification and without the intention of committing murder. Accordingly, the verdict is amply supported by the evidence, and the trial judge did not err in denying the motion for new trial on the general grounds.
Judgment affirmed. Townsend, P. J., and Frankum, J., concur.