Opinion
31905.
DECIDED MARCH 2, 1948.
Pointing gun at another; from Blakely City Court — Judge Bonner. November 21, 1947.
Stone Stone, for plaintiff in error.
Phillip Sheffield, Solicitor, contra.
One who warns another to come no farther, as he stands upon the porch of his home with a rifle in his hands, and, holding it at his hip, points it in the direction of the other, who, leaving a group of confederates stationed nearby, approaches the house with the manifest intention of doing violence to the occupant, is not guilty of the offense of unlawfully pointing a weapon at another, under the Code, § 26-5107.
DECIDED MARCH 2, 1948.
The grand jury of Early County indicted Willie Gray Brocken for intentionally pointing and aiming a rifle at and toward Cecil Cobb. The defendant was tried in the City Court of Blakely.
Construing the evidence in its most favorable light to sustain the verdict, the jury was authorized to find facts as follows: The prosecutor is a farmer and lives about 7 miles north of Blakely. The defendant lives about 3 miles from the prosecutor. Collins' store is located near the home of the latter. On October 27, 1946, the defendant came to Collins' store riding a mule. The defendant had worked for the prosecutor prior to then and owed him $3, which he had agreed to work out. The defendant had failed to report for the purpose of working out the $3. The prosecutor, learning that the defendant was at the store, sent word to him over at the store by his brother Billie either to send the $3 or come to see him, or they were going to have trouble. The defendant sent a message back to the prosecutor that the prosecutor did not like, and thereupon the prosecutor started out to find the defendant and see what he meant by it. Upon finding that the defendant had left the store, he drove toward the defendant's home, and on the way found his brother Billie, Roscoe Barrentine, and O. B. Weaver in a car on the road. Billie Cobb was waiting there for the prosecutor by prearrangement with him to go to see the defendant about the word the defendant had sent the prosecutor that had offended the latter. Prior to the arrival of the prosecutor, Barrentine and Weaver had passed Billie Cobb parked on the road, and upon being told that he was waiting for his brother and for what reason, they had already accepted Billie's invitation to go to the defendant's house. The four then went on to the home of the defendant. The defendant had abandoned his mule on the way home and caught a ride in a car the rest of the way. They drove up to the side yard at his house, and he got out of the car and started up toward the back porch. The defendant was on this porch, and just before the prosecutor got to the porch the defendant pointed his rifle at him and told him not to come any farther. The defendant did not put the rifle to his shoulder, but held it at his hip. Neither the prosecutor nor the men he carried with him were armed. The prosecutor then turned around, went back to his car, drove away and swore out a warrant for the defendant. One of the State's witnesses testified that the prosecutor appeared to be mad or nervous, and another State's witness testified he did not appear to be mad or nervous, but appeared to be normal. The defendant made a statement, which under our law the jury was authorized to disregard, in which he said in substance: that he had ridden a mule to Collins' store that day, and the prosecutor had sent him word that he was going to whip him; that he got on his mule and started home, got off on the way and, leaving the mule, caught a ride the rest of the way home in an automobile; that when the prosecutor started in on the porch, he (defendant) had a rifle in his hands and told the prosecutor not to come any farther.
The jury returned a verdict of guilty, and the trial court sentenced the defendant to serve 6 months in the public works camp. The defendant filed a motion for new trial on the general grounds. The trial judge overruled the same, and this judgment is assigned as error.
Section 26-5107 of the Code, under which the defendant was indicted, provides as follows: "Any person who shall intentionally point or aim a gun or pistol, whether loaded or unloaded, at another, not in a sham battle by the military, and not in self-defense or in defense of habitation, property, or person, or other instances standing upon like footing of reason and justice, shall be guilty of a misdemeanor."
The defendant knew that trouble with the prosecutor was imminent. Therefore he hurried away from the proximity of the prosecutor, and went home. Shortly after his arrival home a car containing four men drove up into his back yard. The man from whom he anticipated violence got out of the car and started walking toward his house. This man looked mad or nervous to one of the men in the car. He may have also so impressed the defendant. Just before he reached the porch the defendant committed the act of which he was convicted.
Under the facts as they existed and as the defendant understood them, he must have been in apprehension of danger. He must have feared that the prosecutor intended to enter his habitation and do violence to him. That this fear was that of a reasonable man, under the facts and circumstances here, is inescapable. After the exchange of messages at the store, the defendant had hurried home, even to the point of abandoning his mule and catching a ride in an automobile. Upon arriving there, he prepared himself for the impending invasion of his habitation. When it came he was outnumbered four to one.
We are not called upon to decide whether or not the defendant would have been justified had he fired upon the prosecutor. It is enough to say that one who warns another to come no farther, as he stands upon the porch of his own home with a rifle in his hands, and, holding it at his hip, points it in the direction of the other, who, leaving a group of confederates stationed nearby, approaches the house with the manifest intention of doing violence to the occupant, is not guilty of the offense of unlawfully pointing a weapon at another, under the Code section herein quoted; and under the undisputed evidence a verdict of not guilty was demanded.
The judgment of the trial court, overruling the motion for new trial, was error.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.