Swain v. State, 35507

• Decision Date: 28 January 1955
• Docket Number: No. 2,No. 35507,35507,2
• Citation: 86 S.E.2d 642,91 Ga.App. 561
• Parties: C. C. SWAIN v. The STATE
• Court: Georgia Court of Appeals

Page 642

86 S.E.2d 642

91 Ga.App. 561

C. C. SWAIN v. The STATE.

No. 35507.

Court of Appeals of Georgia, Division No. 2.

Jan. 28, 1955.

Rehearing Denied Feb. 18, 1955.

Syllabus by the Court

1. An admission by the defendant on trial of participation in a shooting which forms the basis of the crime charged is to be taken as direct rather than circumstantial evidence. Accordingly, it was not error here, the evidence showing that the defendant made such a statement, for the trial court to fail to charge on circumstantial evidence. It is not error to fail to charge on circumstantial evidence in the absence of a request where the evidence is not wholly circumstantial.

2. In the absence of a request, the charge of the court as given on the subject of reasonable doubt and the presumption of innocence was sufficient.

3. The law relating to admissions and confessions need not be specifically charged in the absence of a request.

4. The defendant was indicted in count 1 for assault with intent to murder by shooting the victim with a shotgun, and in count 2 for the offense of mayhem by putting out both eyes of the victim by shooting him with a shotgun. The intent to kill, which is a necessary ingredient of the first offense is contrary to and inconsistent with the intent to maim which is a necessary ingredient of the second, for which reason the defendant cannot be convicted of both offenses founded upon a single transaction. The special assignments of error complaining of this repugnancy authorize the reversal of the case as to count 2 only.

C. C. Swain was indicted in the Superior Court of Toombs County in two counts, one charging him with assault with intent to murder, and the other with mayhem in that (count one) he did with a shotgun 'unlawfully and with malice aforethought shoot and wound said J. W. Beasley with the intent then and there to kill and murder said J. W. Beasley,' and that (count two) he did without sufficient cause or provocation and with intent to maim J. W. Beasley, voluntarily, maliciously, and of purpose put out both of the eyes of the said J. W. Beasley by shooting * * * in the face with a shotgun.'

Upon the trial the evidence showed that there had been some shooting at the O'Neal place; that defendant went there during the afternoon and was shot at and forced to leave; that he then went back to an automobile where he had a shotgun, and shot it several times in the direction of the dance hall, and was himself shot and wounded; that at this time he was wearing a white shirt and khaki trousers; that in the early evening Beasley, a State patrolman, was investigating the occurrence and saw a man with a white shirt come from the woods in front of the O'Neal place and go to the Faircloth house down the road; that he and his companion went down there and he saw a man with a white shirt come out from behind the Faircloth house and go in the direction of the woods across from the O'Neal place; that he called on the man to stop, but he ran back to the woods; that he did not lose sight of him except once, then came upon him in the shadow of a tree and called, 'All right, fellow, put up your hands,' whereupon the man shot him in the face with the shotgun. The victim entirely lost the sight of one eye, and can only distinguish light from darkness with the other, as a result. The defendant was arrested shortly thereafter while trying to climb a fence, and had on a white shirt, khaki trousers, and carried a shotgun from which one shell was missing. On questioning he was asked by several officers why he had shot the man, to which he replied, 'I don't know how come me to shoot him'; and, in answer to the question, 'You knew you were shooting at an officer', he replied, 'Yes, but I didn't mean to hurt him. I am sorry I shot him.'

The defendant was convicted on both counts of the indictment. He filed his motion for a new trial on the general grounds, amplified by the later addition of several special grounds. The denial of this motion is assigned as error.

J. Ellis, Pope, Lyons, Jackson & Graham, Vidalia, for plaintiff in error.

W. H. Lanier, Sol. Gen., Metter, for defendant in error.

TOWNSEND, Judge.

1. Special grounds 1 and 3 of the amended motion for a new trial complain of the failure of the trial court to charge in specified particulars as to circumstantial evidence. The State having introduced proof of an inculpatory statement on the part of the defendant, from which it appeared that he had shot the victim, the evidence against him was not wholly circumstantial; and therefore, in the absence of a request, it was not error to fail to charge on circumstantial evidence, as set out in these special grounds. Strickland v. State, 167 Ga. 452(1), 145 S.E. 879; Bowen v. State, 181 Ga. 427, 182 S.E. 510.

2. Special ground 2 assigns error because the trial court failed, without a request, to charge that, whether dependent on positive or circumstantial evidence, the true question in criminal cases is, not whether it be possible that the conclusion at which the evidence points may be false, but whether there is sufficient evidence to satisfy the mind and conscience beyond a reasonable doubt. In ground 4 the complaint is that it was error to fail to charge, without request, that the defendant is presumed innocent until the jury is satisfied beyond a reasonable doubt as to his guilt, and that the burden of producing such evidence is upon the State. The court did charge: 'If the jury should not...