Opinion
35012.
DECIDED FEBRUARY 24, 1954. REHEARING DENIED MARCH 16, 1954.
Shooting at another. Before Judge Humphrey. Washington Superior Court. November 11, 1953.
J. D. Godfrey, Casey Thigpen, for plaintiff in error.
W. H. Lanier, Solicitor-General, T. A. Hutcheson, contra.
1. The evidence abundantly sustains the conviction of shooting at another.
2. The attack on the charge of the court and on the failure to charge more fully that a brother has a right to defend a brother in the same manner as he has a right to defend himself is without merit, as this was sufficiently presented to the jury in the charge; and the contention that the jury were confused by the court's charging that principle of law in such close connection with misfortune and accident is without merit.
3. Special ground 2 shows no cause for reversal, for the reasons given in the body of the opinion.
DECIDED FEBRUARY 24, 1954 — REHEARING DENIED MARCH 16, 1954.
The defendant was convicted of illegally shooting at another under an indictment charging him with assault with intent to murder. He filed his motion for a new trial on the statutory grounds and in due course added two special grounds. The court denied the motion. On this judgment the defendant assigns error.
In view of the unusual evidence in the case and the circumstances surrounding the occurrence, and also in view of the unusual contentions of counsel for the defendant, we deem it necessary to set forth the evidence somewhat in detail. The prosecutor, Arthur J. Hartley (whom we shall hereinafter refer to as the prosecutor), testified that he knew the defendant and the defendant's brother, Eddie Riddle. The prosecutor was on his way to Davisboro on the date of the occurrence in question. He was driving his truck. Two colored boys, Jesse Duggan and Napoleon Wathen, were with him. These two boys were employees of the prosecutor, and had been working for him for several years. They were engaged in assisting the prosecutor in treating wheat in Davisboro. The defendant and his brother were also employed by the prosecutor, in helping the brother of the prosecutor harvest peanuts in Davisboro. As the prosecutor was on his way to Davisboro, on the usual route in reaching Davisboro, the prosecutor saw the defendant and the defendant's brother at the home of one Salter. The defendant and his brother had possession of the Ford tractor which belonged to the prosecutor, and which was to be used in harvesting the peanuts. The prosecutor had not authorized the defendant and his brother to take the tractor to Salter's place. The prosecutor knew that liquor was being sold at that place. When the prosecutor observed the defendant and his brother, the brother, Eddie Riddle, was driving the tractor. The defendant and his brother were drinking, and the tractor was stuck in the mud and the wheels were spinning. The defendant traced the tractor where it had been driven. The wheels had been spinning, and the wheels spun. The ground was torn up for a distance of about a mile. The prosecutor returned home, thinking that the defendant and his brother would bring the tractor to the defendant's home. However, they did not do this. The prosecutor then returned to Salter's place, and found the defendant standing in the yard and the defendant's brother in Salter's house. The prosecutor inquired of the defendant the whereabouts of the defendant's brother, and was informed that he was to be found inside Salter's house. The prosecutor asked the defendant to call his brother out of the house. The defendant would not do so. "He [meaning the defendant] swelled up fit to bust when I spoke to him." The prosecutor asked a boy standing on the porch to tell the defendant's brother to come out. "Eddie came out staggering and smoking. He came right up toward me. I said, `Eddie, what are you doing driving my tractor like this up and down the road?' I said, `Who told you to take my tractor off?' He began to stutter and had his hand in his pocket like that [indicating]. He came walking right up in my face. When he got right up in my face, I slapped him and when I slapped him, that boy [meaning the defendant] was standing off to the side and there was a pile of brick over there. I didn't know he had a rifle on the tractor. He wasn't supposed to have a rifle on the tractor, so I thought he was fixing to run and grab a brick. I kept my eye on him. He ran to the tractor and grabbed the rifle off the tractor and came up with it and threw it in my face and said, `You g____ d____ s. o. b. I will blow your g____ d____brains out.' He said, `I will kill you, g____ d____ it.' And when he threw that rifle in my face, I was pretty close to my truck and I turned my back to him and went on and got inside of my truck and sat down, and when I sat down he fired at me with the rifle. He told me he would kill me. He says: `You g____ d____ s. o. b., I will blow your g____ d____ brains out, g____ d____ you,' and he asked me, `Don't you believe I will do it?' That was not the one I slapped; that was another one. . . At the time he actually fired the rifle, I had just gotten into the truck. The bullet hit the truck — like this was the truck, I walked around the truck and got in at this door, and he was standing on this side of the truck [indicating] and he shot at the truck, at the top part of the back part of the fender, which would be just about even with the windshield." The rifle was not an automatic rifle. After the defendant fired the rifle, he went to the swamp and took the rifle with him. The prosecutor then went to Davisboro and telephoned the sheriff and told him about the situation. The sheriff went to the scene of the occurrence and tracked the defendant through the swamp. The prosecutor carried his truck home. The prosecutor further testified that from where he was sitting in the truck and from where the defendant was standing at the time he fired the shot, the sign made on the truck where the bullet hit and the place where the defendant was standing was in line with the body of the prosecutor.
On cross-examination, the prosecutor testified that Eddie Riddle, Hubert Riddle, Napoleon Wathen, and Gus Duggan and the prosecutor were all of the people who were at Salter's house at the time of the shooting except a little boy. The prosecutor had been in court in the last several years. Wathen and Duggan were not necessarily witnesses of the prosecutor. Neither of them had ever testified in any case other than the present one. They had been employed by the prosecutor for three years. The prosecutor was getting into the truck on the left-hand side when the shot was fired. The shot hit the right-hand fender even with the back part of the door. The prosecutor could not see the defendant at the time the shot was fired. The prosecutor testified, "I knew he had it, [meaning the rifle] pointed at me." The prosecutor had the defendant and the defendant's brother put in jail. He did not say he would take them out of jail if they would come back to work for the prosecutor, and further testified, "I have never talked to the father of the defendant and Eddie Riddle."
On redirect examination, the prosecutor testified that, at the time he turned to go around the truck to get in the truck, the defendant had the rifle pointed straight at him. At the time the defendant pointed the rifle at the prosecutor, the prosecutor heard an outcry as follows: "Eddie says, `Don't shoot him, Hubert, don't you shoot him Hubert, don't you shoot him.' After I was in the truck and sat down, he was still telling Hubert, `Don't you shoot him, Hubert, don't you shoot him.' He [meaning the defendant] says, `I'll kill him, g____ d____ him.'"
Gus Duggan, sworn for the State, corroborated the testimony of the prosecutor generally. When the defendant's brother came out of the house, he had his hands in his pocket and the prosecutor slapped him. The defendant got the rifle off of the tractor and stated that he would kill the prosecutor, and asked the prosecutor if the prosecutor heard what the defendant said. The prosecutor stated that he had heard the statements of the defendant. The prosecutor got in the truck and the defendant had the rifle pointed at the prosecutor. No one said anything to the defendant when he pointed the rifle. The prosecutor got in the truck, and then it was that the defendant fired the rifle. The witness described the manner of the shooting and the sign where the bullet hit the truck.
On cross-examination, the witness stated that he had been working for the prosecutor for two years and had never been a witness in any case for the prosecutor except the present one. The witness stated that he did not know why the prosecutor slapped the brother of the defendant. The witness testified that the brother of the defendant had his hands in his pocket. He testified that Eddie, the brother of the defendant, stutters, and the witness did not know what Eddie was saying to the prosecutor. At the time the rifle fired, the prosecutor was getting in on the left-hand side of the truck.
Napoleon Wathen testified for the State on both direct and cross-examination substantially the same as the testimony of the prosecutor and Duggan.
The defendant introduced Eddie Riddle, Sr., the father of the defendant and of Eddie Riddle, Jr. The witness testified that he saw the prosecutor the day of the occurrence in question. The witness was passing the prosecutor's house, and was called into the back yard by the prosecutor. The prosecutor inquired of the witness the whereabouts of the sons of the witness, and the witness informed the prosecutor that he did not know where they were, whereupon the prosecutor remarked to the witness that the witness had better find them and turn them over to the sheriff and let the boys stay "up there" for a few days until "they were convinced," and that then the prosecutor and the father of the boys would get them out. The prosecutor did not say anything about having a warrant.
Eddie Riddle, Jr., the brother of the defendant, testified for the defendant that, on the occasion in question, the prosecutor said something to the witness about spinning the tractor wheels; that the witness never had a chance to answer; that, while he was trying to tell the prosecutor what happened, the witness was "slapped down" by the prosecutor. When the prosecutor knocked the witness down, the prosecutor started to leave. He was going towards the truck. The witness testified: "I was not doing anything to him when he knocked me down. I had not spoken a word to him. I had my hand down beside me when he knocked me down. When the prosecutor knocked me down, he started to leave. He was going towards the truck. He came up to the left side. When he slapped me, Hubert, my brother, went to the tractor and got the rifle. He didn't do any cursing, he just told Mr. Hartley [the prosecutor] not to hit me any more. I am older than Hubert. Hubert got the rifle, and Mr. Hartley was jumping in the truck. Hubert was on the right side of the truck. Mr. Hartley was fixing to run. He got in the left side of the truck, and was going to run off. My brother and I were tusseling over the gun when it went off. I was trying to take the rifle from him. I thought he might shoot Mr. Hartley, and I was trying to take the rifle away from him. The bullet hit the fender on the right side of the truck, and that was a long ways from Mr. Hartley. Hubert never did point the rifle at Mr. Hartley."
On cross-examination, the witness testified: that he was driving the tractor; that they were coming from work; that neither the witness nor the defendant was drunk, but both were drinking; that the liquor was not obtained at Salter's house; that it was given to the witness by the prosecutor's brother; that the witness and the defendant carried the rifle on the tractor to hunt that day; that the defendant ran and got the rifle and did something that made the witness believe that the defendant was going to shoot the prosecutor; "Mr. Hartley [meaning the prosecutor] had turned and was going towards the truck after he slapped me." The witness testified that he was trying to get the rifle from the defendant; that he never did get the rifle away from the defendant because the defendant would not give it to the witness; "The prosecutor was gone then." The witness testified that the rifle fired while he was trying to get it away from the defendant.
It appears from the record that the defendant was sworn as a witness in his own behalf, without objection, and was questioned directly by his counsel and cross-examined by the solicitor-general. He testified: that it was not customary for the brother of the prosecutor to furnish liquor to the defendant and his brother; that the morning of the occasion in question was the only time he ever did so; that, when the defendant and his brother got back as far as Salter's house, there were some girls there and they stopped; that the defendant came out of the house and was looking around when the prosecutor stopped and inquired the whereabouts of the defendant's brother; that the defendant informed the prosecutor that Eddie was in the house; that the witness knew that the prosecutor was mad; that the defendant told a boy who was present to get the defendant's brother out of the house; that the prosecutor asked the defendant's brother, Eddie, "something"; that Eddie did not answer; that the prosecutor slapped Eddie down, whereupon the defendant got a rifle from the tractor and told the prosecutor not to slap Eddie any more; that the defendant did not curse the prosecutor at all; that, when the defendant got the rifle, the prosecutor did not start to run; that the prosecutor did not run to the truck and get in; that the prosecutor came on back to the truck and got in the truck; then the defendant's brother, Eddie, got a hold on the defendant's rifle; that, when Eddie grabbed the rifle, the defendant was standing "before the tractor"; that was on the right side of the truck; that the defendant never pointed the rifle at the prosecutor; that the prosecutor was getting in on the left side of the truck; that Eddie grabbed the rifle and it went off; that, when Eddie grabbed the rifle and was trying to take it from the defendant, that is when the rifle went off accidentally; that the defendant did not intend to shoot, and did not have any idea of shooting Mr. Hartley; that he did not want to shoot him; that he did not want the prosecutor to slap his brother, Eddie.
On cross-examination, the same witness testified: that the defendant and his brother, Eddie, drove about a mile from Hartley's place, where the defendant and Eddie were working; that the prosecutor told them to take the tractor to use to harvest peanuts; that the defendant carried the rifle on the tractor to hunt after they quit work; that they stopped at Salter's place in passing; that the defendant did not drive the tractor, but that Eddie drove; that the defendant did not know what was making Eddie drive the tractor so badly, but that it might have been that he was drinking too much to drive it well; that, when Eddie came out of the house, he was trying to talk to the prosecutor about driving the tractor up and down the road; that Eddie stutters, and when he is drinking he stutters worse than he otherwise does; that, while "that was going on," the prosecutor slapped Eddie down; that, "when Mr. Hartley slapped him [meaning Eddie], he, [Hartley] went to the truck, and that is when I went to the tractor and grabbed the rifle off of it; when I grabbed the rifle off of the tractor, I did not point it towards Mr. Hartley. I didn't point it towards Mr. Hartley; I just grabbed the rifle. He might have thought I was, I reckon, he told me not to shoot him and then grabbed it."
The State's rebuttal: Gus Duggan, recalled, testified that Eddie did not have a tussle with the defendant over the rifle; that Eddie did not go to the defendant and take hold of and tussle over the rifle before the rifle was fired; that the defendant and his brother did not tussle over the rifle at all.
Napoleon Wathen, recalled, testified that the defendant and his brother did not tussle over the rifle before it was fired; that the defendant fired the rifle before his brother could catch him; that, when the defendant got the rifle, he pointed it at the prosecutor.
The prosecutor, recalled, testified that the defendant and his brother were not tussling over the rifle at the time it fired; that the defendant's brother never did get his hands on the rifle.
1. The evidence abundantly sustains the conviction of illegally shooting at another.
2. Special ground 1 contends that the court did not fully charge that a brother could defend a brother the same as he could defend himself. The court throughout the charge stated to the jury that, "In this case, generally, always remember that the defense of a brother stands on the same footing as the defense of one's person." In this ground, counsel for the defendant claims that in another portion of the judge's charge, after he had charged that a brother has a right to defend a brother, the judge added: "I charge you that a brother has a right to defend a brother, and also charge you that no person shall be found guilty for any crime or misdemeanor committed by misfortune or accident where it satisfactorily appears that there was no evil design or intention or culpable neglect. An accident is an event that takes place without one's foresight or expectation, that which takes place or begins to exist without design. To absolve one from guilt of crime it must not only appear that there was no evil design but that there was no culpable neglect."
When we read the charge as a whole, we think that the court sufficiently charged in no unmistakable terms that a brother has a right to defend his brother the same as he has a right to defend himself. The principle of law as called to our attention by counsel for the defendant, i. e., Harper v. State, 17 Ga. App. 561 (2) ( 87 S.E. 808), is a correct rule of law, but it is not applicable under the facts and record of the instant case. Counsel for the defendant also called our attention to Willingham v. State, 72 Ga. App. 372 ( 33 S.E.2d 721). The opinion in that case does not sustain the contentions of distinguished counsel. The only principle of law ruled there was that reasonable fears had no application in voluntary manslaughter. In that case the person attacked died; and this court held that under the facts of that case the court was justified in charging voluntary manslaughter on the theory that the jury were authorized to find that the defendant might have acted under a hear of passion. In truth, it seems to us that that decision, under its facts, is authority for the principle of law that, where one shoots under a passion and misses the mark and death does not result, the defendant is guilty as a matter of law of illegally shooting at another. That seems to be just what happened here. The defendant was drunk or mad, or both, and fired the shot, with an abundance of evidence to support the fact that he did so in a mad passion aroused because the prosecutor committed on the brother of the defendant a misdemeanor offense. In our opinion, in the instant case a verdict of assault with intent to murder would have been authorized under the evidence. Certainly the evidence authorized a verdict of illegally shooting at another. It must be kept in mind that, even conceding that the prosecutor committed an assault and battery on the defendant's brother, the defendant's brother and other witnesses testified that the slapping of the defendant's brother by the prosecutor was at an end, and the prosecutor had returned to his truck and gotten into it when the shot was fired. It must not be forgotten also, and the jury were authorized to believe, that the brother of the defendant was drunk and was approaching the prosecutor with his hand in his pocket and walked almost into the face of the prosecutor at the time the prosecutor slapped the defendant's brother. Up to this point, just where is there any sort of evidence, in this record, which would justify the defendant in what he did? Even from the defendant's own evidence, the slapping incident was at an end "when the shot was fired." But the defendant's contention is that the firing of the gun was an accident. This was a jury question. The jury did not believe that the firing was an accident. The court fully charged on accident as hereinabove mentioned.
Counsel further call our attention to the following cases: Carroll v. State, 70 Ga. App. 78 ( 27 S.E.2d 423); Warnack v. State, 3 Ga. App. 590 ( 60 S.E. 288) and Helms v. State, 138 Ga. 826 ( 76 S.E. 353). The principle of law under the facts of those cases is not applicable here.
The facts of the instant case are not sufficient to require a reversal. As we see it, under such facts, the principle of a brother defending a brother is not applicable because the instance of the prosecutor slapping the defendant's brother was over, as hereinabove stated, and hence there was no occasion to charge on that principle of law. But the charging of such principle did not harm the defendant. As above stated, the defendant does not contend that, at the time of the gun-fire, his brother was being attacked in any way whatsoever. Moreover, after the rifle had been fired, the defendant filed, and that is a circumstance as to guilt which the jury could consider. We find no merit in special ground 1 under the record in this case and the law applicable thereto.
3. Special ground 2 complains because the court refused to charge a written request concerning the law of reasonable doubt. The court did charge on the presumption of innocence, and also charged several times to the effect that the jury would not be authorized to convict the defendant unless it found him guilty beyond a reasonable doubt. The first case called to our attention on this question (although it did not concern reasonable doubt) is Roberts v. State, 114 Ga. 450 (1) ( 40 S.E. 297), wherein the court said: "In a close and doubtful case it is error for the judge to refuse to give the jury, upon an appropriate written request submitted in due time, a charge applying to the facts, as shown by the evidence for the party making the request, the law applicable thereto; and this is true although the judge in his charge states the abstract principle of law applicable to those facts."
The facts of the instant case to our minds do not present a close and doubtful question, notwithstanding the other cases cited by the defendant, i. e., Terry v. State, 17 Ga. 204 and Pressley v. State, 132 Ga. 64 (2) ( 63 S.E. 784). Neither of those cases involves the question of reasonable doubt. This special ground does not require a reversal of the case.
The court did not err in denying the motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.