Merritt v. State, 22338.

• Decision Date: 15 June 1932
• Docket Number: No. 22338.,22338.
• Citation: 45 Ga.App. 371,164 S.E. 473
• Parties: MERRITT et al. v. STATE.
• Court: Georgia Court of Appeals

45 Ga.App. 371

164 S.E. 473

MERRITT et al.

v.STATE.

No. 22338.

Court of Appeals of Georgia, Division No. 1.

June 15, 1932.

Syllabus by the Court.

1. There being direct testimony that the defendant Merritt shot directly at Jack Bur-gamy with a shotgun, not in his own defense or under circumstances of justification, the jury properly found that defendant guilty of shooting at another.

2. There being no proof of conspiracy between the defendants Merritt and Oxford, and the evidence being insufficient to connect Oxford with the shooting, the verdict finding Oxford guilty of shooting at another was not supported by the evidence.

3. Under the facts presented, the trial judge did not err in overruling the motion for a continuance, based upon lack of time for counsel to prepare his defense.

4. The last special ground, complaining of the admission of certain oral testimony, presents no question for the consideration of this court.

Error from Superior Court, Washington County; R. N. Hardeman, Judge.

Marvin Merritt and John Oxford were convicted of unlawfully shooting at another, their motion for a new trial was overruled, and they bring error.

Conviction of Marvin Merritt affirmed, and conviction of John Oxford reversed.

J. E. Hyman, of Sandersville, for plaintiffs in error.

Marvin L. Gross, Sol. Gen., of Sandersville, for the State.

LUKE, J.

The special presentment in this case charges that Marvin Merritt and John Oxford committed assault with intent to murder upon Jack Burgamy by shooting him with a shotgun. The defendants were tried jointly, and both were convicted of unlawfully shooting at another. The trial judge having overruled the defendants' motion for a new trial, they excepted.

Jack Burgamy testified, in substance, that as he was going in Little Ogeechee swamp early on the morning of April 18, 1930, he saw the defendants coming out of the swamp; that Oxford was carrying a shotgun; that the defendants "turned back and went into the swamp"; that a few minutes after seeing them witness left the swamp and tried to telephone the sheriff at Sandersville, but that the line was cut half a mile below defendants' homes; that it then happened that Mr. Rountree, a state game warden, with two deputies, approached witness and asked him to go down to the river with them to see about some fish traps which Rountree had heard were there; that the party followed the tracks made by the defendants earlier in the morning to where a fish trap was located in the river; that just before they got to the trap some one "whistled right low, " and the defendants "slipped down the creek"; that witness' party had "stayed there about fifteen minutes, " when a gun fired from a distance of forty-nine yards, and several shot struck witness, who at the time was standing on a log; that witness saw Marvin Merritt "just before he taken the gun down, " and that he was the man who fired the gun j that Merritt "run out from that lagoon place" and shot a second time: that only two shots were fired; that witness "did not see anybody else there at the time the gun fired, " and "didn't see anybody there afterwards, " tout that there were "tracks and signs where the other fellow set"; that the other tracks were six or eight yards "off to Marvin's left"; that the tracks compared in size and general appearance with the tracks the defendants had made earlier in the morning, but that "there was nothing particular that indicated the identity of the tracks"; that witness had torn out a fish trap there before, and that others "tore it out the second time"; that when the trap was torn out the second time, Merritt was fishing just above the edge of the trap, a place where there was not likely to be any fish, and that other parties were fishing above Merritt; that Merritt was in the swamp a good deal, and that Merritt had nagged at witness, "looked like he wanted to raise a fuss"; that witness knew who did the shooting because he saw him; that "nobody else saw them at that particular time: that witness was certain that it was Marvin Merritt and John Oxford that he saw that day, and who shot him"; that witness and Oxford had had "some very severe words one to the other, " and that witness had told Oxford that he "expected to prosecute him the very first opportunity"; that witness' commission as game warden had expired "just before that, " and that he was not an officer; that the defendants lived about a mile from the place where the shooting occurred, and near together; that a path led from the fish trap to a place near where the defendants lived; that there was anotherpath to the trap, but that it was not used; that there had been numerous other traps in the river; and that Merritt was frequently in the swamp.

The foregoing is the material evidence in the case. No other member of the party with Burgamy saw either of the defendants at the time of the shooting. Both defendants stated that they were elsewhere when the shooting occurred, and their statement in this...