Barnes v. State
| Decision Date | 06 April 1944 |
| Docket Number | 30424. |
| Parties | BARNES v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Under the general grounds, the evidence sustains the verdict.
2. When we consider the charge as a whole, the special grounds are without merit for the reasons set forth in the opinion.
The defendant was convicted of unlawfully shooting at another and filed a motion for new trial, to which in due course he added three special grounds. The motion was overruled, and he assigns error on that judgment. The evidence shows that the defendant Barnes and Hoyt Smith were farmers living on adjoining lands. Smith's cow had been going onto the defendant's land and destroying his crops. Before the date of the shooting, Barnes had gone to Smith's house and requested that Smith keep his cow off of Barnes' premises. Hot words followed, and Smith invited Barnes to get down from a mule, and he would settle it with Barnes, using abusive and threatening language. The defendant Barnes rode away. On the day of the shooting, Smith observed the defendant, armed with a shotgun, standing near the dividing line of the two farms. Smith's cow was near the line but on Smith's side. Whereupon Smith went to his home a short distance away, procured his gun and went into conversational speaking distance of the defendant. After some words between them, the state's evidence shows that Smith laid down his shotgun and began making a cigarette. While doing so he observed the cow approaching the line in the direction of the defendant's farm; whereupon Smith proceeded to walk in the direction of his cow, and from the defendant, for the purpose of preventing the cow from crossing the line onto the defendant's land. The defendant Barnes then said to Smith: "Now I got you and I am going to shoot you." Smith then turned his head sideways to face Barnes, and Barnes shot him. The doctor testified in substance that Smith was shot down toward the middle line of his face, on the left side; most of the load going into the posterior triangle of the neck on the right side, some shot entering the left eye. It would not have been possible for the wound to have been made by shooting directly at Smith. It seemed that the whole shotgun load was in his face. An officer, who went to the scene of the shooting on the same afternoon it happened, testified that he saw blood at the scene and an empty shell, and also saw a cigarette leaf.
The State introduced other witnesses, who testified to the effect that at the time the defendant shot Smith, Smith had put his gun down and was going in the direction of the cow. There was no evidence of any shot marks on the stock of the gun belonging to Smith.
In his statement to the jury the defendant, after relating the difficulty and conversations between himself and Smith before the shooting, further stated that on the day of the shooting he saw the cow in his field, and as he went to get her she crossed over the line; that she had some yearlings with her that Smith went into his house and came out towards the defendant with a gun and said: "That is the only cow I got, God damn you, I am going to kill you," that when Smith came up with his gun, the defendant shot him; and that "I caught his eye on the gun barrel and I shot him." It was 300 yards from Smith's house to where he was shot. The defendant introduced other evidence of an impeaching nature, and also to the effect that he had visited a justice of the peace in an effort to get some legal protection from the destruction of his crop by Smith's cow.
R. M Nicholson, of Watkinsville, and Erwin & Nix, of Athens, for plaintiff in error.
D. M. Pollock, Sol. Gen., of Monroe, for defendant in error.
1. It will thus be readily seen from the evidence that the jury were fully authorized to return their verdict for illegally shooting at another. The general grounds are not meritorious.
2. (a) Special ground 1 assigns error on the following charge: "If you find, in considering the evidence, that there is a conflict in the testimony between the witnesses, or a conflict between the witness or witnesses and the defendant's statement, then I tell you you are the exclusive judges as to the credibility of the witnesses." Error is assigned on this charge, first because it inferentially withdrew from the consideration of the jury the credibility of the defendant's statement; and second, because it tended to lead the jury to believe that they need not consider the credibility of the defendant's statement. This court stated in Crosby v. State, 43 Ga.App. 220(4), 158 S.E. 633: ...
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Cash v. State, 23401
...the charge complained of has been approved by this court in Dumas v. State, 63 Ga. 600(8), and by the Court of Appeals in Barnes v. State, 71 Ga.App. 9, 29 S.E.2d 919. He requests that this Court review those decisions and overrule them. A similar but not identical charge was approved in Sh......
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...The assignment of error on this special ground has no merit. This court dealt with this question fully in Barnes v. State, 71 Ga.App. 9, 11, 29 S.E.2d 919, and in that opinion called attention to Eidson v. State, 21 Ga.App. 244, 94 S.E. 73; Tyre v. State, 37 Ga.App. 376, 140 S.E. 527, and J......