Fallon v. State

Powell, J.

(After stating the foregoing facts.)

A verdict of shooting at another is not a legal finding;, where the evidence demands the conclusion that the defendant was either guilty of assault with intent to murder or was not guilty at all. Chester v. State, 3 Ga. App. 332 ( 59 S. E. 843 ); Coney v. State, 101 Ga. 582 ( 28 S. E. 918); Tyre v. State, 112 Ga. 224 (37 S. E. 374); Kendrich v. State, 113 Ga. 759 ( 39 S. E. 286 ). To state the proposition a little differently, a person is guilty of the statutory offense of shooting at another when he, without justification, shoots at another, without the' intention (in the legal sense of the word) of committing murder; and this lack of intention to commit murder may exist from the fact that he shot without any specific intention of killing at all, or from the fact that if death had ensued from the wound, the homicide would not have been murder, but would have been manslaughter in some of its grades. If death results from a defendant’s intentionally shooting at the deceased with an ordinary pistol in a manner ordinarily likely to kill, the defendant’s intention to kill is not issuable. The law presumes that he intended to kill, and not to inflict some lesser injury. But if death does not ensue, the law does not presume that the defendant intended to kill, though he shot with a weapon likely to produce death and in a manner ordinarily likely to produce that result; for in .cases of assault with intent to murder, the burden of proving that the defendant was possessed of a specific intention to kill is always upon the State, unaided by any presumption of law. The pronouncements of these propositions by this court and by the Supreme Court have been so uniform and unequivocal as to place them beyond question. See Burris v. State, 2 Ga. App. 418 ( 58 S. E. 545 ); Duncan v. State, 1 Ga. App. 118 ( 58 S. E. 248 ); Napper v. State, 123 Ga. 571 ( 51 S. E. 592 ); Gallery v. State, 92 Ga. 463 ( 17 S. E. 863 ); Patterson v. State, 85 Ga. 131 ( 11 S. E. 620 , 21 Am. St. R. 152 ). Since, therefore, it is issuable and a question for the jury, in every case where death does not ensue, whether the defendant’s intention in shooting was to kill or was to inflict a lesser injury, the evidence can not be said to demand a verdict of guilty of assault with intent to murder, even where no justification or mitigation appears, unless, in addition to the fact of the shooting, there be shown such, other facts and circumstances as'to establish beyond question *662 and the possibility of legitímate dispute that' the defendant did in fact intend to kill. In some cases the Supreme Court has held the evidence of the defendant’s intention to kill to be so strong as to admit of no other legitimate inference, and in these cases a verdict of the statutory offense of shooting at another has been held to be without the bounds of the evidence, and therefore an illegal finding. This was'so in the cases of Kendrick and Tyre, supra, in each of which cases the defendant’s lethal intent was made manifest by a statement accompanying the shooting that he did propose to kill the person he was about to shoot. If it were not for this distinction the eases just mentioned and other similar cases would be utterly irreconcilable with the indisputable proposition that the question whether the defendant intended to kill or not is always for the jury. It is our opinion that the facts shown in the present case indicate the intention to kill very strongly, but not so strongly that we are able to say as a matter of law that the finding that this specific intention did exist was absolutely demanded of the jury; therefore we can not reverse the judgment on the ground that the verdict is contrary to the evidence in that it finds the defendant guilty of an offense indicated by no phase of the testimony.

2. Exception is taken to the fact that the court gave in charge to the jury §73 of the Penal Code, which relates to and limits the right of self-defense when the killing occurs in a mutual combat. After carefully reading and considering the testimony and the statement of the defendant, we are very doubtful that any mutual combat or any mutual intention to fight was shown; and yet if we do not recognize that the defendant’s statement was sufficient to present this theory of the case, a finding that the shooting was in legal contemplation malicious and not justifiable seems to have been demanded. His statement did not make a case of self-defense, actual or apparent. We recognize the rule, and have applied it in several cases, that while words, threats, menaces, and contemptuous gestures are in no ease adequate to arouse that anger and heat of passion which may mitigate a homieidd from murder to voluntary manslaughter,, yet threats and menaces may in some cases present such an appearance of danger as to arouse in the defendant that reasonable fear which will justify the killing. Holland v. State, 3 Ga. App. 466 ( 60 S. E. 205 ) ; *663 Cumming v. State, 99 Ga. 662 ( 27 S. E. 177 ); Johnson v. State, 105 Ga. 665 ( 31 S. E. 399 ); Clay v. State, 124 Ga. 795 ( 53 S. E. 179 ). Nevertheless it must be remembered that there is no justification arising from words, threats, or contemptuous gestures, unless there is at least the “appearance of imminent danger,” and “the means of inflicting the threatened injury must apparently be at hand, and there must be some manifestation of an intention to inflict the injury presently;” though it is not essential that there should be an actual assault. Gumming case, supra. Furthermore, these things must arouse a fear, and the defendant must act upon the fear, and not in a spirit of malice, anger, or revenge, in order that his justification may be complete. According to the defendant’s statement, the prosecutor put his hand in his pocket, where his pistol was, but he did not draw it; even after he had run several steps and the defendant had shot him the second time, he had not drawn it; -and it is further apparent that he did not draw it at all; for when the policeman ran up, the defendant told him to take that man (the prosecutor) with the pistol in his pocket. Taking the defendant’s own version of the matter as the truth, of it, the prosecutor’s threat was, at most, only a conditional threat, — “You little bastard, if you say that, I will kill you.” Nowhere in the statement does the defendant say that his fears were< aroused; if he made that contention at all there is nothing in the record to indicate it. The conditional threat and the alleged menace are so very similar to what occurred in Malone’s case, 49 Ga. 217 , as to make the decision in that case squarely in point. Note also the facts and the decision of the court in Ranvey’s case, 68 Ga. 618 . The jury, in their finding, having given the defendant the benefit of all the leniency legally possible under the testimony and his own statement, he is not in position to demand a new trial for alleged inaccuracies in the charge of the court.

Judgment. affirmed.