Opinion
30819.
DECIDED APRIL 20, 1945.
Assault with intent to murder; from Bulloch superior court — Judge Evans. December 14, 1944.
W. G. Neville, for plaintiff in error.
Fred T. Lanier, solicitor-general, contra.
1. The allegations of the indictment demurred to, to wit, "and did then and there with said weapon and with the intent aforesaid to shoot and seriously wound the said ____," immediately followed the statement of material facts constituting the offense charged in the indictment. The allegations demurred to were not essential to such purpose, and might be entirely omitted without affecting the charge and without detriment to the indictment. Hence they may be considered as mere surplusage; and the indictment is not subject to the demurrer on the ground that the omission to insert the name of the person wounded renders it void, or that the failure to insert such name did not put the defendant sufficiently on notice as to what he was required to defend. The judge did not err in overruling the demurrer on the grounds urged.
2. The court did not err in allowing the State to show by the attending physician why the person alleged in the indictment to have been wounded was not present at the trial, and in permitting the physician to state, in effect, that the wound inflicted was so serious that death might result if complications set in.
3. Where the accused was indicted for an assault with intent to murder and the undisputed evidence established the fact of the shooting and other facts and circumstances were shown which established beyond question and the possibility of legitimate dispute that the defendant in fact intended to kill, the judge did not err in not charging on the law of shooting at another.
4. The evidence authorized the verdict.
DECIDED APRIL 20, 1945.
Willie Rawls was indicted for an assault with intent to murder. His demurrers to the indictment, both general and special, were overruled. He went to trial, and was convicted. His case is here on exceptions to the overruling of the demurrers and the refusal of a new trial.
Picola Edwards, a witness for the State, testified that the defendant shot her sister, Leola Edwards, in the neck with a pistol, and inflicted a serious wound upon her which necessitated that she be carried to a hospital for treatment; that the shooting occurred at the home of her father, Charlie Edwards; that the defendant came to their home and wanted her father to carry him out to Linton Bank's house. His wife was present and did not want him to go. She said that "if he went, she was going also. The defendant and his wife quarreled about his going. He said he had a date with a girl at 8 o'clock out there. That is the reason his wife did not want him to go out there, I reckon;" he was trying to get Charlie Edwards to crank up his car, which was in the front yard, and carry him out to Linton Bank's house. She further testified: "They were in the yard then, and I told daddy [Charlie Edwards] not to go off with him if he was drinking, and he [Willie Rawls] hollered at me and said I was a God damn liar, and I hollered the same back to him, and he said you are a God damn liar and a son of a bitch for taking it, and he came up on the porch and I was standing in the door, and he grabbed me in the collar and reached in his bosom and pulled out his pistol, and he shot and I fell to the floor, and he missed me, and my two sisters were on the porch and they jumped up and started in there toward us, and they told him not to shoot me any more, and he told them to get out of the way or he would shoot them, and I jumped up and ran out the back door, and he shot my sister Leola and my sister Lizzie. He hit my sister Leola in the neck with the bullet. Leola was still on the porch when he shot her." She also testified that they laid Leola out on the porch and called the doctor, and when he came they took her to the hospital. "She is still in bed and not able to be here to-day."
Charlie Edwards, the father of Picola, Leola, and Lizzie Edwards, testified in part that the defendant was sitting in Charlie's automobile in front of Charlie's house and was urging Charlie to take him to Linton Bank's place. Charlie's daughter, Leola, was urging him not "to go off with" the defendant. The defendant then got out of the car and went up on the steps of the porch to Charlie's house, and was using vile and profane language to Picola. He "then went on in the house and I heard the shooting and I ran in there and as I got to the door he was starting out, and me and Leola started in together, and I said to him, `don't shoot in here among these children,' and when he shot in there Picola was getting up, and [she] ran out the back door, and he then shot Leola in the neck, and went out on the porch and shot Lizzie in the breast, and I grabbed him and in the tussle, while I was trying to get the gun away from him to keep him from shooting any more, we fell on the porch and I got shot in the hand."
Dr. Van Buren, a witness for the State, testified in part as follows: "I do know Leola Edwards. . . I treated her for a pistol wound in the neck. It was a serious wound that severed the external jugular vein . . I think she will get over it, of course, if no complications set in, but if leucopenia should set in it might bring sudden death. She is still in a serious condition. She is unable to attend court."
Willie Mae Rogers, a witness for the State, testified in part as follows: "I know the defendant and I do recall the Sunday two weeks ago when Leola Edwards got shot. I was not there when the shooting was going on. I was up at my house just two houses above where the defendant lives. I saw him throw his pistol away just after the shooting. . . [He] threw it in the bushes, and I said, `What's going on down there?' and then I said, `I'm going to tell you threw the gun away,' and he said, `You had better keep your mouth shut.'"
The defendant, in his statement to the jury, denied any guilt, and stated that the shooting was an accident.
1. The charging part of the indictment reads as follows: That the defendant did "unlawfully, feloniously and of his malice aforethought and with a certain pistol, the same being a weapon likely to produce death, in and upon one Leola Edwards, a human being in the peace of the State then and there being, made an assault with the intent the said Leola Edwards to kill and murder, and did then and there with said weapon and with the intent aforesaid shoot and seriously wound the said ____ contrary to the laws of said State," etc. (Italics ours.) The defendant demurred generally to the indictment on the ground that that part of it which is italicized and which reads as follows: "Did then and there with said weapon and with the intent aforesaid shoot and seriously wound the said ____," is a material part of the indictment, and that the omission to insert the name of the person wounded in the italicized part renders the indictment a nullity. The defendant also demurred specially to the indictment on the ground that the failure to insert the name of the person wounded in the blank space in the italicized part of the indictment did not put the defendant sufficiently on notice as to what he was required to defend. The judge overruled the demurrers. Noting that the italicized part of the indictment, if stricken, would not negative the crime charged, nor would the crime charged be changed to a different crime by striking the italicized words, nor is the part of the charge italicized more descriptive of the identity of that which is legally essential to the indictment than the allegations previously made in the indictment, we think that the material facts which constituted the offense charged in the indictment were stated immediately preceding the italicized part of the indictment, and that the allegations italicized, which were the allegations demurred to, were not essential to such purpose and might be omitted entirely without affecting the charge and without detriment to the indictment, and thus may be considered merely as surplusage. Mere surplusage will not vitiate an indictment and need not be established in proof. The judge did not err in overruling the demurrers. 1 Wharton's Criminal Evidence (10th ed.), 366, § 138.
2. The defendant contends that the court committed reversible error "because Dr. H. Van Buren, a witness sworn for the State, was permitted to give the following testimony, over the objection thereto by the movant: `I think she will get over it of course if no complications set in.' The movant made the following objection to the admission of this testimony: `If your honor please I object to that statement; he can describe the wound but he can't tell what might happen later on.' The court overruled this objection and permitted the witness to testify as follows: `I don't know if complications will set in but if leucopenia should set in it might bring sudden death. She is still in a serious condition. She is unable to attend court.' The following objection was then and there urged to the admission of said testimony: `If your honor please I want to ask that all that testimony be stricken from the record, that this wound might result in the death of this person, on the ground that the offense charged is assault with intent to murder, and this testimony is highly prejudicial and hurtful to the rights of the defendant in the trial of this case.' The court overruled said objection and its motion to strike said testimony." We do not think that the court erred in allowing the State to show by the attending physician why the person alleged in the indictment to have been wounded was not present at court in the trial of the case, by showing that the very wound inflicted by the defendant was the cause of her absence, and that the wound was serious, so serious that she was unable to attend court and testify in the case. The jury might have drawn the inference from the evidence admitted that the witness, by attending court, might have caused complications which might even have brought about her death. The State was entitled to account for the absence of a witness by testimony explaining the cause thereof. This ground is not meritorious.
3. The undisputed evidence established that there was a motive for the shooting; that it was done maliciously and without justification or mitigation. This, along with the other facts and circumstances established by the undisputed evidence, to wit: The proximity of the defendant to the person or persons wounded or shot at; the dangerous spot on the anatomy where the wound was inflicted; the seriousness of such wound; that the interference of the father of the girls in trying to stop the shooting prevented the further malicious and unjustified shooting by the defendant; that the father was shot in the hand himself during the said tussle; that after such malicious and unjustifiable shooting the defendant attempted to hide the pistol in some bushes in the garden; that he was discovered in the act of hiding the said pistol by Willie Mae Rogers; that when Willie Mae asked him "what's going on down there?" and then added: "I am going to tell you threw the gun away;" the defendant replied: "You had better keep your mouth shut" — when taken together, establish beyond question and the possibility of a legitimate dispute that the defendant in fact was shooting to kill as alleged. Chester v. State, 3 Ga. App. 332 ( 59 S.E. 843); Fallon v. State, 5 Ga. App. 659, 661 ( 63 S.E. 806); Tyre v. State, 112 Ga. 224 ( 37 S.E. 374); Kendrick v. State, 113 Ga. 759 ( 39 S.E. 286). Furthermore, the evidence established the fact that there was no just cause to arouse a sudden passion, and hence, if the defendant intended to kill under the circumstances, he could not legally say that the provocation was sufficient to justify the excitement of passion and exclude all idea of deliberation or malice; neither could he say that if the wounding of the person in question had caused death, it would have been manslaughter, nor could he say that because death had not resulted, the crime, if any, would be shooting at another. Gamble v. State, 58 Ga. App. 637 (1, 2) ( 199 S.E. 662). The judge did not err in not charging on the law of shooting at another.
4. The evidence authorized the verdict.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.