Uley v. State, 32527.

• Decision Date: 09 November 1949
• Docket Number: No. 32527.,32527.
• Citation: 80 Ga.App. 434,56 S.E.2d 123
• Court: Georgia Court of Appeals
• Parties: ULEY. v. STATE.

56 S.E.2d 123

80 Ga.App. 434

ULEY.

v.STATE.

No. 32527.

Court of Appeals of Georgia, Division No. 2.

Nov. 9, 1949.

Peter Uley was convicted in the Superior Court of Liberty County, M. Price, J., of unlawfully shooting at another, his motion for new trial was overruled, and he brought error.

The Court of Appeals, MacIntyre, P. J., held that court's charge was not erroneous and that defendant's statement and the evidence authorized conviction and affirmed the judgment.

Syllabus by the Court.

1. Where on the trial of one under indictment for assault with intent to murder, one phase of the evidence or the defendant's statement, authorizes the jury to find that the defendant shot and wounded the prosecutor in mutual combat, begun and carried on in hot blood, and authorizes a verdict of unlawful shooting at another, the court does not err in charging the law of unlawfully shooting at another, and for purposes of comparison, the law of voluntary manslaughter.

2. Ground 9 is treated as abandoned.

3. Grounds 7 and 8, and 10 and 11 are without merit.

4. The evidence authorized the verdict.

Peter Uley was indicted in the Superior Court of Liberty County of assault with intent to murder one Henry S. Bell. He was convicted of unlawfully shooting at another. His sentence was fixed at not less than one year nor more than two years with the recommendation of the jury that he be punished as for a misdemeanor. He moved for a new trial, which motion was overruled and he excepted.

W. C. Hodges, Hinesville, for plaintiff in error.

R. L Dawson, Sol. Gen., Ludowici, for defendant in error.

MacINTYRE, Presiding Judge.

1. The defendant contends that since under the evidence in this case only two theories are possible; namely, that he is either guilty of assault with intent to murder as charged, or that he is not guilty, that the court erred in giving in charge to the jury the law with reference to the unlawful shooting at another and, for purposes of comparison, the law of voluntary manslaughter. Special grounds 4, 5, and 6 are based upon this contention, and in these grounds the defendant does not question the court's accuracy of language in stating the law of the unlawful shooting at another and of voluntary manslaughter, but contends that the error consists in the giving of the law on these subjects when the evidence did not authorize it.

According to the defendant in his statement to the jury the shooting took place in the following manner. He had worked with the prosecutor in the past and he and the prosecutor had never had any "hard feelings" between them until the day of the shooting. He had been at his home when, upon the insistence of Nathaniel Jones, he went in his truck, taking Nathaniel, to the prosecutor's place of business to get some beer. He was driving the truck and upon reaching the prosecutor's store, Nathaniel got out and went into thestore while the defendant was in the act of turning the truck around in the direction of his home from which he had come. Near the prosecutor's store, several boys were at that time attempting to crank their automobile by pushing it, and when the defendant had turned his truck around and had almost reached the steps of the store, the boys' automobile cranked and backfired or "popped a time or two" and as the defendant reached the steps the following argument ensued between him and the prosecutor: "Henry asked me what is I shot at out there for and I tell him I didn't shoot, I aint got nothing to shoot, he said you tell a damn lie, you did shoot out there, and I said Henry I didn't come up here for no row, I said I just only come up here with Nathaniel for a bottle of beer. Well he cursed me for everything he could think of, so I didn't even get the boy [Nathaniel], I turned around and started back and he called me back to the door and I didn't went no farther than the steps and I talked with him and he still cursing me. I said Henry, you should not curse me like that I aint did nothing to you I just come up here to appreciate you, your business, he said you a damn lie so I went back and he said now damn it, if youse hot about it go home and get you God damn gun and meet me halfway, we'll shoot it out. So he cursed me so until I got hot and 1 went home [a distance of some 700 yards] and got my gun and come on to the gate to my house and just as I got out there, I couldn't see him, a gun fired and he sprinkled my legs with shot from here, see where the shot hit me all there (indicating from the ankle to the thigh), some hit me here and some up here and that's what caused me to shoot him, I just shot the direction the gun fired. I didn't even know how to hit him." Under this phase of the defendant's statement and the evidence the jury was authorized to find, irrespective of any other phase of the evidence or the defendant's statement, that both the defendant and the prosecutor were actually combatting at the time the defendant shot the prosecutor, and under this phase of the evidence and the defendant's statement the law of unlawfully shooting at another, and, for purposes of comparison, the law of...