Tipton v. State

• Decision Date: 12 January 1904
• Parties: TIPTON . v. STATE.
• Court: Georgia Supreme Court

46 S.E. 436

119 Ga. 304

TIPTON .

v.STATE.

Supreme Court of Georgia.

Jan. 12, 1904.

CRIMINAL LAW — INDICTMENT — EVIDENCE — VENUE—ALIBI—ASSAULT WITH INTENT TO KILL—APPEAL—NEW TRIAL.

1. An indictment must allege a certain time within the statute of limitations, but on the trial the date may be established by circumstantial evidence.

¶ 1. See Indictment and Information, vol. 27, Cent. Dig. § 247.

2. Ordinarily, when a month is referred to, it will be understood to be of the current year, unless from the connection it appears that another is intended.

3. The indictment charged that the offense was committed on August 25, 1903, and on the trial thereafter during the same year the prosecutor testified that the offense was committed on August 25th, without stating the year. The defendant sought to prove an alibi, and offered evidence as to where he was on August 25, 1903. It being evident that both the state and the accused understood that the proof went to establish the commission of the act on the day charged in the indictment, a new trial will not be granted on the ground that the evidence left uncertain the time when the offense was committed.

4. Proof that the prosecutor lived in Walker county, and that he was assaulted while in his residence, sufficiently established the venue.

5. It was for the jury to determine whether the positive identification of the defendant as the perpetrator of the crime was met by the proof offered to establish an alibi.

6. Where one was charged with an assault with intent to murder A., and it appeared that the defendant had fired into a house in which A., B., C, and D. were living; that one shot came near B. and another within 18 inches of A.—there was evidence to support a conviction of an assault with intent to murder A.

7. This court cannot grant a new trial on the ground that the punishment was excessive, even though the defendant was found guilty with a recommendation to mercy.

8. The newly discovered evidence was merely cumulative of that previously offered in support of the defense of alibi. Besides, there was no showing as to the character and credibility of the new witnesses. Civ. Code 1895, § 5481.

9. There being no error of law assigned other than that the verdict was contrary to law and the evidence, and the evidence being sufficient to support the verdict, this court will not interfere with the discretion of the judge in refusing a new trial.

(Syllabus by the Court.)

Error from Superior Court, Walker County; W. M. Henry, Judge.

Fayette Tipton was convicted of assault with intent to kill, and brings error. Affirmed.

Lumpkin & Rosser and John W. Bale, for plaintiff in error.

Moses Wright, Sol. Gen., for the State.

LAMAR, J. An indictment must allege a certain time within the statute of limitations when the offense was committed. Bailey v. State, 65 Ga. 410. If the day and month are given and the year is omitted, it is insufficient. Hence a charge that an offense was committed on "the 3d of June instant" was held to be defective in Com. v. Hutton, 5 Gray, 89, 66 Am. Dec. 352; People v. Gregory, 30 Mich. 371; White v. State, 93 Ga. 48, 19 S. E. 49 (4). While the allegations in the indictment must be specific, the time may be established by circumstantial evidence, and the present case is within the rule laid down in Tillson v. Bowley, 8 Greenl. (Me.) 163, followed in Marston v. Jenness, 12 N. H. 144, that "when a month is referred to, it will be understood to be of the current year, unless from the connection it appears that another is intended." Contra, Lehritter v. State, 42 Ind. 383. The indictment was found on August 26, 1903, and alleged that the assault with intent to murder was committed on August 25, 1903. The trial took place in September, but during the same term at which the indictment was found. The witnesses for the state testified that the "shooting occurred at 9:15 p. m. on August 25th." The defendant endeavored to establish an alibi, and offered much evidence to show that on...