Stallings v. State, 37856

• Decision Date: 23 September 1959
• Docket Number: No. 2,No. 37856,37856,2
• Parties: Rudolph STALLINGS v. STATE
• Court: Georgia Court of Appeals

Page 109

111 S.E.2d 109

100 Ga.App. 327

Rudolph STALLINGS v. STATE.

No. 37856.

Court of Appeals of Georgia, Division No. 2.

Sept. 23, 1959.

Rehearing Denied Oct. 5, 1959.

Rudolph Stallings was indicted in the Superior Court of Carroll County for the offense of murder. The jury found him guilty of involuntary manslaughter in the commission of an unlawful act. The trial court overruled his motion for a new trial on the general grounds and on four special grounds, and the exception here is to that judgment.

On the trial of the case, the evidence showed substantially that the deceased, a boy of fifteen years, together with two other boys, were hunting squirrels on the property of one of the boys' uncles which adjoined property of the defendant. The evidence showed that they went across the line onto the defendant's property, whether knowingly or not it does not appear, that the deceased was engaged in shaking a sapling, apparently for the purpose of flushing out squirrels from a squirrel's nest in a tree, and the other two were standing by some 24 or 25 feet away for the purpose of shooting the squirrels that ran out, that a squirrel ran out and the other two shot at it, and at about that instant the deceased was struck by a bullet fired by the defendant from a field, as contended by him, some 210 feet away. The evidence shows without dispute that the other two boys ran to the deceased when he exclaimed that he had been shot, and that the defendant reached the deceased' side before both of the other boys could get there. The evidence showed that the deceased could not have been seen by the defendant from the position where he contended that he had stood when he fired the pistol.

Shirley C. Boykin, Wm. P. Johnson, Carrollton, for plaintiff in error.

Wright Lipford, Sol. Gen., Newnan, for defendant in error.

Syllabus Opinion by the Court

CARLISLE, Judge.

1. Where the evidence adduced on the trial of one charged with murder showed that the defendant deliberately fired a pistol across a field and into a woods under circumstances from which the jury could infer that the defendant knew, or should have known, of the presence of the deceased in the area and in the general direction in which he fired the pistol, the jury were authorized to find that the defendant had committed an unlawful act in so firing the pistol under the circumstances (Code, § 26-1702), and the verdict finding the defendant guilty of involuntary manslaughter in the commission of an unlawful act was authorized by the evidence. Where the defendant on the trial of the case of the character above indicated admitted the shooting of the pistol, and relief for a defense solely on the contention that the fact that the deceased was struck by the bullet and killed thereby was accidental, a finding in favor of such defense is not demanded by evidence which shows merely that the ultimate target which the bullet from the defendant's gun hit was an unintended one. This is true notwithstanding the fact that the defendant was on his own property, a 50-acre tract of land, and that the deceased could have been legally classified as a trespasser thereon at the time of the shooting. See in this connection Code, § 26-404; Pool v. State, 87 Ga. 526(3), 13 S.E. 556; Leonard v. State, 133 Ga. 435(5), 66 S.E. 251; Allen v. State, 134 Ga. 380, 381(1), 67 S.E. 1038; Griffin v. State, 183 Ga. 775, 783(6), 190 S.E. 2; Solesbee v. State, 204 Ga. 16(3), 48 S.E.2d 834; Baker v. State, 12 Ga.App. 553(1), 77 S.E. 884.

2. Where one discharges a .22 caliber...