Hart v. State

• Decision Date: 05 December 1936
• Docket Number: 25673.
• Parties: HART et al. v. STATE.
• Court: Georgia Court of Appeals

189 S.E. 547

55 Ga.App. 85

HART et al. v. STATE.

No. 25673.

Court of Appeals of Georgia, First Division

December 5, 1936

Rehearing Denied Dec. 17, 1936.

Syllabus by the Court.

1. Under the facts of the case, the failure of the court to charge on simple assault, in the absence of a timely and appropriate written request, was not error.

2. "Any person who shall be guilty of the offense of shooting at another, except in his own defense or under circumstances of justification, with a gun, pistol, or other instrument of the like kind, shall be punished by confinement in the penitentiary not less than one nor more than four years." Code, § 26-1702. "To shoot at another without legal excuse, with a pistol loaded with powder only within the distance to which the pistol will carry when so shot, will constitute the offense of shooting at another. * * *" Clark v. State, 84 Ga. 577, 10 S.E. 1094. "One who shoots with a pistol in the direction of another situated within the range of a pistol, not intending to hit him, but intending to frighten him, is guilty of an assault." Edwards v. State, 4 Ga.App. 849, 62 S.E. 565; Holmes v. State, 21 Ga.App. 150, 151, 94 S.E. 69. The offense of shooting at another "is a form of aggravated assault." Copeland v. Dunehoo, 36 Ga.App. 817, 822, 138 S.E. 267, 269.

3. "In criminal law, conspiracy is a combination or agreement between two or more persons to do an unlawful act and may be established by proof of acts and conduct, as well as by direct proof or by express agreement." Bolton v. State, 21 Ga.App. 184, 94 S.E. 95; Jones v State, 38 Ga.App. 266 (3), 143 S.E. 613, and cit.; Smith v. State, 47 Ga.App. 797, 802, 171 S.E. 578. Applying this ruling to the facts of this case, the court did not err in charging the law of conspiracy.

4. In the only other special ground, error is assigned on the following excerpt from the charge of the court: "It would make no difference, if the defendant or defendants shot at the prosecutor, not in his own defense or under circumstances of justification, according to the principles of the Code, with what intent he shot-whether to kill him or not." Under the facts of the case, there is no merit in the assignment of error that "this charge of the court was error because it incorrectly instructs the jury the law applicable to this case, because it does make a material difference with what intention the shooting was done."

5. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Error from Superior Court, Bulloch County; Wm. Woodrum, Judge.

Edgar Hart, Alton McCorkle, and W. W. Strickland were convicted of shooting at another, and they bring error.

Affirmed.

MacINTYRE, J., dissenting.

Deal & Renfroe, J. M. Murphy, and D. C. Jones, all of Statesboro, for plaintiffs in error.

W. G. Neville, Sol. Gen., of Statesboro, for the State.

PER CURIAM.

Two police officers of the city of Statesboro saw the prosecutor in an automobile in the city at night. They claimed he was drunk. He denied this. No arrest was made, and later on a citizen reported to these officers that the prosecutor had recklessly run into his car. The officers got into the car with the citizen and found the prosecutor outside the city limits. They had no warrant for his arrest, nor had any crime been committed in their presence. They told him they were going to carry him back to town, and he then drove off at a rapid rate of speed. They followed him some twelve miles in the country and shot twelve times, hitting both fenders of prosecutor's car, shot out the tail light, and caused him finally to run his car off a bridge. He was then arrested and carried back to Statesboro. They were indicted and tried for the offense of shooting at another. A verdict of guilty was found, with a recommendation of misdemeanor punishment. In passing sentence, the court followed the recommendation.

Only the first headnote needs elaboration. Complaint is made that the court failed, without request, to charge on simple assault. To our mind the above facts constituted more than a bare assault, especially is this true when the defendants denied the shooting and made no claim that the shooting was done merely to frighten. In his statement, one of the defendants said: "But as far as shooting at that boy, I haven't shot at him and wouldn't let anybody else shoot at him if I knew it." In Crumbley v State, 61 Ga. 582, 584, a defendant was tried under an indictment charging shooting at another but was convicted of an assault. The contention for the defendant was that it was at Christmas time, and he and some others who wanted to have some fun out of an engineer on a passing train discharged at the engineer a gun which was loaded only with powder. In that case the court held that to fire a gun loaded only with powder at another is an assault. When shot at, the...