Leary v. State, 12599.

• Citation: 200 S.E. 779,187 Ga. 445
• Decision Date: 11 January 1939
• Docket Number: No. 12599.,12599.
• Parties: LEARY. v. STATE.
• Court: Supreme Court of Georgia

187 Ga. 445

200 S.E. 779

LEARY.
v.
STATE.

No. 12599.

Supreme Court of Georgia.

Jan. 11, 1939.

[200 S.E. 779]

Error from Superior Court, Monroe County; G. Ogden Persons, Judge.

Willie Leary was convicted of murder, and he brings error.

Reversed.

Willie Leary, charged with murder of Jim Sharp, alias Jim Edwards, by shooting him with a pistol, was found guilty without a recommendation to mercy. In his unsworn statement before the jury the defendant said: "We stood there after we decided not to go to the store and were talking, and started back up the road when he [the deceased] pulled out the whisky and took a drink and offered me a drink and I told him 'No, ' because I didn't care for a drink and he stopped there in the road and rolled him a cigarette; he didn't have but one arm and had to lay the cigarette leaf on his knee and while he was rolling the cigarette he said, 'Let me sell you a pistol, ' and I said, 'No, I don't need no pistol. * * *' He [the deceased] shot the pistol twice and went to put two more bullets in it and it went off and he fell and I tried to pull him back up and after I couldn't pull him up I hollered to Amy and told them he had shot himself and I went on over to Mr. Smith's and told them I had shot him and they said, 'Well, we will get over there and see about it.' * * * I didn't try to make a escape at all because what 1 did was done accidentally; it was not done a purpose at all." On the basis of this statement the judge charged: "The defendant, by his statement, admits that the deceased was killed by a pistol that was in his, the defendant's hands, but he denies that the killing was murder in that he contends that it was unintentional."

This charge was assigned as error on the grounds: "(a) It tended to lead the jury to believe that the movant admitted that he killed the deceased with a pistol in his hands, when the statement of the defendant was to the effect that the deceased accidentally shot himself, (b) That such a charge considered in connection with the statement of the defendant was confusing to the jury and tended to lead the jury to believe that the defendant in his statement admitted that he killed the deceased, when as a matter of fact and record the defendant said the deceased shot the pistol twice and then started to put two more bullets in it and it went off and shot himself, (c) It tended to prejudice the jury against the defendant and calculated to lead the jury to accept this charge in preference to giving him the...