Glover v. State
| Decision Date | 06 April 1910 |
| Docket Number | (No. 2,507.) |
| Citation | 67 S.E. 687,7 Ga.App. 628 |
| Parties | GLOVER v. STATE. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
On the question as to whether the verdict of shooting at another is authorized by the evidence, the case of Fallon v. State, 5 Ga. App. 659, 63 S. E. 800, is controlling.
[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 82; Dec. Dig. § 57.*]
"Where the question of personal identity and the fact of alibi are virtually the same defense, the omission of the court to instruct separately on alibi is not error."
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1S33-1837; Dec. Dig. § 775.*]
Wherever section 1030 of the Penal Code of 1895 is applicable, it is error for the judge to
fail to give it in charge to the jury. However, the defendant's guilt being reasonably clear in the present case, and it being possible that the errors complained of may be corrected without a new trial, the judgment is reversed, with directions looking to the obviating of this error.
Error from Superior Court, Worth County; Frank Park, Judge.
Fannie Glover was convicted of shooting at another, and brings error. Reversed, with directions.
Fannie Glover was indicted for assault with intent to murder, and convicted of the offense of shooting at another. The prosecutor swore that, while it was slightly after sundown when he was shot, yet that he could clearly recognize the defendant; and, if his statement was true, he could hardly be mistaken in her identity. Especially is this true, as there were only two or three other people present, and the occurrence happened at the defendant's house, or very near there. The others present, without attempting to say who did shoot, said that it was not the defendant. The defendant herself stated that she had gone to the well for water, and had not returned to the immediate point where the shooting occurred when it took place. While the distance from the well to the place where the shooting took place was not shown, there is nothing to indicate that it was very far. The judge did not in express terms instruct the jury on the question of alibi, but did tell them that the evidence, beyond a reasonable doubt, must identify the defendant as the person who did the shooting.
Claude Payton and C. E. Hay, for plaintiff in error
. W. E. Wooten, Sol. Gen., for the State.
POWELL, J. (after stating the facts as above). 1. The first point is that the verdict of shooting at another is not authorized; that, if the defendant shot at all, she was guilty of assault with intent to murder; that, there was no middle ground. The point is not well taken. See Fallon v. State, 5 Ga. App. 659, 63 S. E. 806.
2. "Where the question of personal identity and the fact of alibi are virtually the same defense, the omission of the court to instruct separately on alibi is not error." Dale v. State, 88 Ga. 553 (6) 15 S. E. 287; Carr v. State, 4 Ga. App. 332 (2), 61 S. E. 293. There was no written request to charge on alibi in the present case. It is doubtful that even the defendant's statement presented a case of strict technical defense of alibi. See, also, Smith v. State, 6 Ga. App. 577, 65 S. E. 300.
3. The charge of the court in the main was very able, fair, and lucid. There was an omission, however, which under the decision of the Supreme Court in Johnson v. State, 100 Ga. 78, 25 S. E. 940, is so material as not to be treated as harmless error. The offense of which the defendant was convicted is one of those in which the jury have the right to make the recommendation that the defendant be punished as for a misdemeanor. The court failed to give the jury any instruction on this point. In the...
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...v. O'Callaghan, 2 Idaho (Hasb.) 156, 9 P. 414;State v. Freidrich, 4 Wash. 204, 29 P. 1055, 30 P. 328, 31 P. 332;Glover v. State, 7 Ga. App. 628, 67 S. E. 687;State v. Sorrentino, 31 Wyo. 129, 224 P. 420, 34 A. L. R. 1477. “Murder is the unlawful killing of a human being with malice aforetho......
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