Fallon v. State

• Decision Date: 16 February 1909
• Docket Number: 1,637.
• Parties: FALLON v. STATE.
• Court: Georgia Court of Appeals

63 S.E. 806

5 Ga.App. 659

FALLON v. STATE.

No. 1,637.

Court of Appeals of Georgia

February 16, 1909

Syllabus by the Court.

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 the circumstances surrounding it, would not have been murder but would have been manslaughter in some 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.

[Ed Note.-For other cases, see Assault and Battery, Cent. Dig. § 82; Dec. Dig. § 57; ^[*] Homicide, Dec. Dig. §§ 86, 145, 282 ^[*]]

Words, threats, and menaces are insufficient to justify one person in killing or in attempting to kill another or in shooting at him, unless the words, threats, and menaces, taken in connection with all the surrounding circumstances, present at least the appearance of imminent danger; and the means of inflicting the threatened injury must apparently be at hand, and there must be some manifestation of an intention to inflict the injury presently, though it is not essential that there should be an actual assault by the person shot at or killed.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. § 163; Dec. Dig. § 116. ^[*] ]

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

W. F. Fallon was convicted of shooting at another, and brings error. Affirmed.

The defendant was indicted for assault with intent to murder, and convicted of shooting at another. The evidence for the state was that the prosecutor and the defendant were engaged in a conversation relating to the former's refusal to let the latter see a girl who was in his house; that the conversation was friendly; that the prosecutor wholly unarmed, and without doing anything provocative even in the slightest degree, turned to walk away, when the defendant fired at him with a pistol, wounding him and almost killing him. The defendant stated that, while he and the prosecutor were talking about the girl, the prosecutor took a pistol from his pocket, and let it drop to the ground. Both stooped to pick it up, but the defendant got it, and said to the prosecutor: "For Christ's sake don't kill me! I have done nothing to you." The prosecutor laughed, and said, "All right." The defendant then said: "Let's cut this argument out, and we will get a drink." He returned the pistol to the prosecutor, who put it in his coat pocket, and they went in and got a drink. As they came from the saloon, the prosecutor turned to the defendant, and said: "You had no God damn right to say what you did about that girl." The defendant said: "That girl is nothing but a damn little whore, and that's why you keep her in your house." The prosecutor replied, "You little bastard, if you say that I will kill you," and reached in his pocket for his pistol. The defendant thereupon drew his pistol, and fired upon him. The prosecutor ran for a short distance, and wheeled around with his hand still in his pocket, and the defendant fired again. A policeman ran up, and the defendant said to him: "Catch that man [the prosecutor], and get his gun out of his right-hand coat pocket." This presents fairly the substance of the defendant's statement; and it will be noted that he did not contend that the prosecutor ever drew his pistol or attempted to use it, and that he did not state that he shot under fear that the prosecutor would shoot him if he did not act first, or that he believed that he was in any danger of being shot by the prosecutor. The jury found the defendant guilty of shooting at another.

Robt. L. Colding, for plaintiff in error.

W. W. Osborne, Sol. Gen., A. P. Wright, and John Rourke, Jr., for the State.

POWELL J.

A verdict of shooting at another is not a legal finding where the evidence demands the conclusion that the defendant was either guilty of assault with intent to murder or was not guilty at all. Chester v. State, 3 Ga.App. 332, 59 S.E. 843; Coney v. State, 101 Ga. 582, 28 S.E. 918; Tyre v. State, 112 Ga. 224, 37 S.E. 374; Kendrick v. State, 113 Ga. 759, 39 S.E. 286. To state the proposition a little differently, a person is guilty of the statutory offense of shooting at another when he without justification shoots at another without the intention (in the legal sense of the word) of committing murder; and this lack of intention to commit murder may exist from the fact that he shot without any specific intention of killing at all, or from the fact that, if death had ensued from the wound, the homicide would not have been murder, but would have been manslaughter in some of its grades. If death results from a defendant's intentionally shooting at the deceased with an ordinary pistol in a manner ordinarily likely to kill, the defendant's intention to kill is not issuable. The law presumes that he intended to kill, and not to inflict some lesser injury. But, if death does not ensue, the law does not presume that the defendant intended to kill, though he shot with a weapon likely to produce death and in a manner ordinarily likely to produce that result; for in cases of assault with intent to murder, the burden of proving that the defendant was possessed of a specific intention to kill is always upon the state, unaided by any presumption of law.

The pronouncements of these propositions by this court and by the Supreme Court have been so uniform and unequivocal as to place it beyond question. See Burriss v. State, 2 Ga.App. 418, 58 S.E. 545; Duncan v. State, 1 Ga.App. 118, 58 S.E. 248; Napper v. State, 123 Ga. 571, 51 S.E. 592; Gallery v. State, 92 Ga. 463 17 S.E. 863; Patterson v. State, 85 Ga. 131, 11 S.E. 620, 21 Am.St.Rep. 152. Since, therefore, it is issuable and a question for the jury in every case where death does not ensue whether the defendant's intention in shooting was to kill or was to inflict a lesser injury, the evidence cannot be said to...