noting that the Court in Lee"refused to follow the ruling in ... Futch" and holding that venue in Fulton County was sufficiently proved by evidence that the garage apartment where the murder occurred was 45 feet from a house located in that countySummary of this case from Worthen v. State
MARCH 14, 1950. REHEARING DENIED MARCH 27, 1950.
Murder. Before Judge Andrews. Fulton Superior Court. December 21, 1949.
Young H. Fraser, Joseph W. Love, Mamie Booth, and Madison Richardson, for plaintiff in error.
Eugene Cook, Attorney-General, Paul Webb, Solicitor-General, William Hall, Ogden Doremus, Robert E. Andrews, and Frank B. Stow, Assistant Attorney-General, contra.
1. The venue was sufficiently proved.
2. The evidence was sufficient to support the verdict.
3. Motions for a mistrial, based upon certain answers of a witness for the State which were alleged to put the character of the defendant in issue, were properly overruled, where the court promptly sustained objections of counsel for the defendant and ruled out such questions and answers, and instructed the jury to disregard the questions and answers objected to. Worthy v. State, 184 Ga. 402 (3) ( 191 S.E. 457); Tye v. State, 198 Ga. 262 (4) ( 31 S.E.2d 471); Eden v. State, 43 Ga. App. 414 (1) ( 159 S.E. 134). Special grounds 3 and 4 are not meritorious.
4. Where the court permits a witness for the State to relate facts as to an assault and battery committed upon her by the defendant in the presence of the deceased several weeks before the homicide for which the defendant was on trial, over the objection that such evidence placed the character of the defendant in issue, it was not error to admit this evidence, nor to overrule the defendant's motion for a mistrial, where it appears that the defendant, in an extra-judicial statement which was admitted without objection, and in his statement to the jury, related in detail the altercation between the witness and the defendant. Wheeler v. State, 179 Ga. 287 (1) ( 175 S.E. 440); Lee v. Holman, 184 Ga. 694 (5) ( 193 S.E. 68); Moore v. State, 193 Ga. 877 (2a) ( 20 S.E.2d 403). Special grounds 5, 7, and 14 were properly overruled.
5. Where the defendant in his statement to the jury stated that the automobile which he was driving on the day of the homicide was his automobile, it was not error to overrule objections to the admission of testimony that the defendant on the day of his arrest stated that said automobile was a stolen car, on the ground that such evidence placed the defendant's character in evidence, nor to overrule the defendant's motion for a mistrial. Such evidence was admissible, (a) to rebut the defendant's statement that he owned the automobile, and (b) to illustrate the defendant's conduct and motive. Goodman v. State, 184 Ga. 315 (2) ( 191 S.E. 117); Emmett v. State, 195 Ga. 517 (3) ( 25 S.E.2d 9); Phillips v. State, 206 Ga. 418 ( 57 S.E.2d 555); Code, § 38-302. Special grounds 6 and 8 are without merit.
6. The court's charge on the principle of law relating to justifiable homicide was not erroneous. Though such principle of law was inapplicable under the evidence and the defendant's statement, this charge gave to the defendant the benefit of the defense of justifiable homicide, and no injury resulted to him by reason of such charge, as alleged in special ground 10. Geer v. State, 184 Ga. 805 (1) ( 193 S.E. 776); Williams v. State, 204 Ga. 837 ( 51 S.E.2d 825).
7. The charge of the court as to incriminatory admissions was full and complete, and not subject to the objections urged in special ground 11. Code, § 38-420; Turner v. State, 138 Ga. 808 (1) ( 76 S.E. 349); Fowler v. State, 187 Ga. 406 (3, 4) ( 1 S.E.2d 18); Nelson v. State, 187 Ga. 576 (1) ( 1 S.E.2d 641); Sheffield v. State, 188 Ga. 1 (2) ( 2 S.E.2d 657).
8. In view of the rulings made in headnotes 3 and 4, the court's charge to the jury that, if they believed from the evidence that the defendant had other transactions similar to those charged in the indictment, they should consider the same solely with regard to the mental state or intent of the defendant in so far as they were applicable to the charge embraced in the indictment, "and for that purpose only," was not harmful or prejudicial to the defendant, as asserted in special ground 12.
9. The definition of legal malice given by the court in its charge to the jury, "The intentional killing of a human being, or the killing of a human being by the intentional use of a weapon that, as used, is likely to kill, and a killing without justification or mitigation." in view of other portions of the charge and recharge on murder, malice, and intent, was not subject to the objections, (a) that such recharge in effect instructed the jury that they would be authorized to find legal malice if the defendant intentionally aimed a pistol at the deceased and pulled the trigger when the pistol in fact was loaded, even if at the same time the jury found that the defendant believed that the pistol had been unloaded; or (b) that the court failed to instruct the jury that, if they believed the defendant did not intend to discharge the pistol at the deceased but in fact believed the pistol to be unloaded, then there would be no malice sufficient to authorize a conviction of murder. Smith v. State, 196 Ga. 595 (6) ( 27 S.E.2d 369); Plummer v. State, 200 Ga. 641 (1) ( 38 S.E.2d 411). The court did not err in overruling special ground 13.
10. Where the jury after entering upon their deliberations requested "further explanation on the legal definition of malice aforethought." it was not error for the court, after recharging the jury on the definition of murder and legal malice, to refuse to give in its recharge two written requests for instructions, where such instructions had been given in the main charge to the jury. In giving a recharge requested by the jury, the court is not bound to repeat all of the law favorable to the defendant. Hatcher v. State, 18 Ga. 460 (5). Special ground 15 is without merit.
No. 17024. MARCH 14, 1950. REHEARING DENIED MARCH 27, 1950.
On September 27, 1949, John Patrick Carrigan, alias John Valor, was indicted by a grand jury of Fulton County for the offense of murder; it being charged that he did on August 29, 1949, unlawfully and with malice aforethought kill and murder one Beatrice Samples, by shooting her with a pistol. On October 26, 1949, he was found guilty, and was sentenced to be electrocuted. His motion for a new trial, as amended, was overruled on December 12, 1949, and the case is here on exceptions to the order overruling this motion.
The evidence makes out substantially the following case: The deceased, Beatrice Samples, was a widow, and lived in a garage apartment in the rear of 148 Spruell Spring Road, which apartment was about 40 or 45 feet to the rear of the dwelling owned and occupied by Mrs. Ruth Barron. In addition to the Barron home, there were several houses in the immediate neighborhood. On the morning of August 30, 1949, Mrs. Barron and her daughter, upon entering the Samples apartment, discovered Mrs. Samples' dead body. A part of her body was lying on the end of a sofa, with her face partially towards the wall and her knees and legs resting on the floor. The police officers, who were called to the scene, found a wound on the eyelid of the left eye, near the nose, and a ring of powder smoke about 1-3/4 to 2 inches in diameter, the wounds having been made by a 32 caliber pistol bullet, the bullet having entered her head near the left eye and coming out to the left of the middle of the head. There was no evidence of any other bruises or abrasions on her body, nor of any disorder in her clothes or the furnishings in the room.
Several witnesses for the State identified the defendant as the man who on the afternoon of August 29, 1949, at about 5 o'clock, came to the premises of Mrs. Barron and inquired as to Mrs. Samples, and was informed that Mrs. Samples was visiting her sister, Mrs. H. P. Kirby. The sister testified that, while Mrs. Samples was in her home that afternoon, the defendant came to her home, and Mrs. Samples and the defendant left the Kirby home about 5:30 p. m. Several witnesses for the State testified that shortly thereafter they saw the defendant and Mrs. Samples return to the Samples apartment and enter the same. About 6:15 p. m. several of the neighbors heard a gun shot, and soon thereafter the defendant was seen to leave the apartment and drive away in his automobile. Several witnesses testified that, just prior to their hearing the gun shot, they had heard nothing to indicate that there had been any fight or commotion in the garage apartment.
A witness by the name of Evelyn Hughes testified for the State that, several weeks prior to the date of the homicide, she, in company with the deceased, the defendant, and two other persons, were together on a picnic out in the country; that, while they were together, the defendant became mad at her, and acted as if he were mad with the rest of the crowd. There was no evidence that the defendant had ever been with the deceased other than on this occasion and at the time of the killing.
A pistol, which was identified as the weapon used at the time of the shooting by the defendant, was recovered in Chattanooga, Tennessee, where it had been given by the defendant to a man living there.
The defendant was arrested on September 3, 1949, in Atlanta, and at the time of his arrest he was armed, and remarked to one of the police officers that he could have killed the officer making the arrest if there had not been other men in the house at the time. At the time of his arrest the sum of $6601 was found on his person, and he denied that he knew Beatrice Samples, and denied having had anything to do with the killing. Subsequently he was identified by several witnesses as the man they had seen with Beatrice Samples on August 29 at her home. Thereafter, on September 14, he made a written statement to the police officers, which statement was introduced in evidence without objection. In this statement, he related in detail the occurrence on the Chattahoochee River, at which time he committed an assault upon Evelyn Hughes; that on August 29, after endeavoring to contact several lady friends of his, he drove a Ford automobile to the home of Mrs. Samples, and upon ascertaining that she was at the home of her sister, Mrs. Kirby, he drove the automobile to Mrs. Kirby's house and picked up Mrs. Samples and returned to her apartment on Spruell Spring Road; that, after entering the apartment, he and Mrs. Samples sat upon the sofa, and while she was out of the room he took off his jacket and his holster and gun, and they engaged in an act of sexual intercourse; that there was a friendly conversation between them, and he took out of his pocket a picture of himself, and after putting a notation of his name on it he gave the picture to Mrs. Samples; that she picked up his pistol and opened the cylinder and placed the bullets in the palm of her left hand, and while smiling she pointed the gun at the defendant and snapped it, the defendant not believing that the pistol was loaded; that she thereupon sat down on a stool in front of the sofa, and he took the gun in his right hand and she handed him the bullets, which he took in his left hand, and she said, "Now its your turn, shoot me." The defendant thereupon raised the gun and pulled the trigger, not knowing or realizing that there were any shells in it, and upon pulling the trigger the gun went off, and she fell and said "Pat"; that he jumped off the sofa and reached out and sought to grab her, and realizing what had happened, opened the chamber of the gun and saw there was one shell in it. At that time he heard an automobile coming in the driveway, and looked and saw a man and a woman, and he put the shells back into the gun. Upon examination of her body he found that she was dead, and he then adjusted the holster, put his gun in it, put on his coat, and got into the automobile and drove away. He stopped his automobile and removed the discharged shell from the pistol and threw it away, and after proceeding a short way he recalled that he had left his picture in Mrs. Samples' apartment, and thereupon drove the automobile back to the apartment, retrieved the picture, and then destroyed it. The car which he was driving had a Tennessee license tag on it, and he stopped and replaced it with a Georgia license tag. He thereupon visited several friends, and no mention was made to any of them, as far as his statement shows, as to the shooting of Mrs. Samples. That night he threw automobile license plates for Georgia and South Carolina cars, and the pistol, into the Chattahoochee River. On September 1, he went to Chattanooga, Tennessee, where he traded the Ford automobile for a Plymouth, and this latter car was in his possession at the time of his arrest by officers on September 3.
There was evidence for the State that the defendant did not, when first arrested, admit that he killed Mrs. Samples. After he had been identified by several witnesses as being the person who was at Mrs. Samples' home on August 29, and after Mrs. Kirby, sister of Mrs. Samples, had identified him, he made a statement as to what he would do to Mrs. Kirby, and at the time of his arrest he admitted to one of the police officers that the Plymouth car he was driving was a stolen automobile.
The State introduced a witness by the name of J. F. Spires, who testified that while he was a member of the Fulton grand jury in September, 1949, on an inspection trip to the jail he had a conversation with the defendant, and when the witness asked the defendant whether he killed Mrs. Samples, he said that he had, but that it was an accident; and that he gave the witness two versions of how the killing occurred. One version was that the defendant took the gun off the bed and the deceased reached for it, and when they both had their hands on it, the pistol went off; and the other version was that he was putting on his coat and the gun fell out, and when they got their hands on it, it went off. He further stated to the witness that he was not sorry for what happened, that she needed it.
The defendant did not introduce any evidence, and his statement to the jury was in substantial accord with the written statement that he had made on September 14 as to what occurred on August 29 in the Samples apartment. His statement to the jury included the following:
"We sat on the sofa, and she told me to pull the curtains to and I attempted to pull them to, but they lacked about a foot or two coming to. I noticed in the yard Mrs. Barron taking some clothes down off the line and a little child about three or four years old playing around out there. We engaged in a conversation, and she went over to the vanity, which was on the right side of the room, and picked up a box of pictures and sat down on the vanity stool and showed me the pictures that were in the box. She asked me, did I have any pictures, and I said `yes,' and I pulled them out, and I put a notation on it that she wanted to show it to Evelyn. I said, `I will let you have one,' but not to show her. I wrote on it, `With best regards, Pat'; and I gave it to her and she took the picture and laid it on top of the box and got up and laid the box down. She had a picture of her children in a frame sitting on the end of the table there next to the window at the front of the room. She took the picture and set it in the corner of the frame where the picture of the children were standing or sitting on the doorstep or somewhere, and sat down on the same stool in front of me. I am in a reclining position, leaning back more or less like this, and she was sitting forward, talking to me. We discussed several things in general, nothing in particular. She appeared to be taking it for granted that I was going to be there for the evening, and she asked me, would I go to the tent meeting with her that night. I told her, `No,' I could not hardly do that, considering that I was not of that faith. I am a Catholic and was raised in a Catholic orphans home, and it was against my belief to go to a Baptist tent meeting, I said that, furthermore, I would have to look for the box office if I went up there since I had not been to church for a long time, and the wallpaper would probably come off the wall if I did walk in. I told her, `I would just about as soon be caught dead as to be caught in a place like that.'
"She got up and went over to the bed. I had taken my coat off and told her to lay it up, and asked for a drink of water and she went to get the water, and when she came back she noticed I had a revolver and holster strap. She asked me what I was doing with the gun. I told her it was more or less for protection because I carried a considerable amount of money sometimes. She said, `You don't need any protection here'; and I took the gun and holster off and handed it to her, and she laid it on the bed. When I said `I would as soon be caught dead,' she jumped up and went across the room. It is about a fourteen-foot room, and the bed sits, endways just like this. She picked up the holster and took the revolver out of it, opened it up, and pointed it in that direction and took the cartridges out. She then put the cylinder back up and started back where I was at. I seen her handling the revolver and saw her take the cartridges out of it. I believe it was unloaded; I did not know. She pointed it at me and said, `You would just as soon be dead.' She snapped the trigger. I was not afraid and did not flinch. I had seen her handling the gun. Still laughing, she sat down facing me, and I was propped on this arm leaning back, and she handed me the cartridges in my left hand, and I closed it up to keep from dropping any on the floor. I did not count them or look at them, and she handed me the revolver and said, `Now it is your turn, you shoot me.' I took the revolver and placed it up on my knee and pulled the trigger. When I did that, it went off. I did not load the gun; I still had the cartridges in my hand. I jumped off the sofa and reached out, and Mrs. Samples had risen at the same time and throwed her hands up over her face. She fell across the settee where I had been reclining on the sofa at the same instant that an automobile drove into the driveway. I could see this automobile come into the driveway. It was [a] late model Ford. I believe it was a club coupe. There was a man and a young lady in it, and the lady went in the house, and I was nervous and scared to death and did not know exactly what to do, and it excited me when I seen these people coming in the driveway. I felt Mrs. Samples' pulse and did not feel any, and I felt for her heart beat. I raised her eyelids up — and I had worked as an ambulance driver and had picked up numerous people that had been in accidents, and there was no doubt in my mind that there wasn't any need for to call for help. I got excited and went over and got the holster and reloaded the gun and put the gun back on my hip and left and drove off.
"I had not gone the length of the street before I remembered giving her my picture, and I turned around in front of Mrs. Hancock's house and went in and retrieved the picture where Mrs. Samples had stuck it in there with the picture of her children. I got back in the automobile and went down to Lake Forest Road and tore up the picture and throwed it out. When I came back around, I stopped and attempted to remove the discharged shell that was in the revolver; and while I was in the act of trying to do that, there was a gentleman came driving up in an automobile and wanted to go in the driveway, and I had to back up. I proceeded up the road and throwed the shell out before I reached Roswell Road."
In addition to the general grounds, the defendant in the amendment to his motion for a new trial assigned error in 15 special grounds. Ground 1 is in effect a reiteration of the general grounds. In ground 2, it is asserted that the State failed to prove that the homicide occurred in Fulton County; it being contended that the garage apartment which was located in the rear of 148 Spruell Spring Road was not in Fulton County, though the witness who owned the premises testified that her house known as 148 Spruell Spring Road was in Fulton County.
Ground 3 complains that the court erred in refusing to declare a mistrial, and in refusing to sustain the objections of the defendant to statements made by Loraine Gill, a witness for the State, that on August 29, 1949, the defendant slept with her. Ground 4 asserts that the court erred in refusing to declare a mistrial, on the ground that the witness Gill testified, "We got married," and that certain documentary evidence offered by the State showed that the marriage of the defendant to this witness was invalid. It appears from ground 4 that the court, in over-ruling the motion for a mistrial, instructed the jury to disregard any statement made by either witness or attorneys relating to the defendant being a bigamist or having merely gone through a marriage ceremony with the witness; and it also appears from the record that the court sustained the objection to the witness's testimony that the defendant had slept with her, and instructed the jury to disregard it.
Grounds 5 and 7 relate to the following testimony of Evelyn Hughes, a witness for the State: "He hit me with his hand. The best I remember, he had two rings on his hand, and he hit me the first time, and I got out of the car and he got out, and Ben and Jim were in the back of the car talking, and he hit me again; and the second time he hit me he looked at Beatrice and said, `Have you seen anything tonight?' She said, `No,' and he got back in the car and he attempted to rape me." Ground 14 also complains of the admission of other testimony of Evelyn Hughes, as follows: "He was acting awfully mad then. I think he was mad at me because I would not do just like he wanted me to. I think he was mad at the rest of the people in the crowd. He just stood there and looked at all of us. He was just acting mad, is all I know. I don't think he made any threats except to me. He said he was going to stomp hell out of me if I did not get up off the ground." In ground 5, it is contended that the court erred in not granting the defendant's motion for a mistrial; and in grounds 7 and 14, that the court erred in overruling his objections to the testimony of this witness; the grounds of objection being substantially the same, it being contended that this testimony of the witness related to a separate and independent crime which had no logical connection with the charge for which he was being tried, and that such testimony put the defendant's character in issue, and was irrelevant and in no way admissible for the purpose of showing scheme, state of mind, intent, or motive. It appears from the record that the witness Hughes was cross-examined by counsel for the defendant as to the slapping and his threatening to "stomp hell out of her." It also appears that the defendant in his extra-judicial statement, and in his statement to the jury, related in detail this occurrence with the witness Hughes.
Ground 6 asserts that the court erred in refusing the defendant's motion for a mistrial, because J. W. Gilbert, a county policeman, testified in rebuttal that the defendant told the officer that the car in which he was riding on the day of the homicide was a stolen automobile. Ground 8 asserts that the court erred in overruling the defendant's objections to this testimony. The record shows that the defendant in his statement referred to the automobile which he was driving on the day of the killing as being his automobile.
Ground 9 has been expressly abandoned by the defendant.
Ground 10 asserts that the court erred in charging the jury on the law of justifiable homicide.
Ground 11 complains that the court erred in charging the law relating to incriminatory admissions, on the grounds: (a) there was no evidence to show a plenary confession of guilt; (b) the court should have charged the further principle that an incriminatory admission alone and uncorroborated by other evidence would not justify a conviction of murder; (c) the court erred in defining an incriminatory admission as being an avowal from which guilt may be inferred, because there must be in evidence corroboration of such admission or incriminatory statement; (d) said charge permitted the jury to infer guilt from the defendant's incriminatory statements alone, without corroboration.
Ground 12 complains that the court erred in charging the jury in regard to evidence of other transactions, because (a) there was no evidence of any transaction similar to the one alleged in the indictment; and (b) the evidence as to assault and battery on a third person at a different time and under different circumstances was in no way related to the defendant's mental state or intent so far as the charge of murder was concerned.
Ground 13 complains of the court's recharge to the jury defining legal malice, (a) because the charge in effect instructed the jury that they would be authorized to find legal malice if the defendant intentionally aimed a pistol at the deceased and pulled the trigger when the pistol was in fact loaded, even though the jury at the same time believed that the defendant at that time believed the pistol to be unloaded; and (b) because the court failed to recharge that, if the jury believed the defendant in fact believed the pistol to be unloaded, then there would be no legal malice to authorize a conviction of murder.
Ground 15 complains that the court erred in refusing, in its recharge to the jury, two written requests referred to in that ground, it being alleged that it was the court's duty to repeat charges that had been given in the main charge.
Only the first and second headnotes will be elaborated.
1. Special ground 2 asserts that venue was not proved beyond a reasonable doubt. The only direct evidence as to venue was the testimony of Mrs. Ruth Barron, a witness for the State, who testified that her home was located at 148 Spruell Spring Road, and that her residence consisted of a dwelling house and a garage apartment located about 45 feet from the dwelling, and that the deceased lived in the garage apartment. It appears from the evidence that the deceased was killed in the garage apartment above referred to. Mrs. Barron testified that the home where she resided was in Fulton County. A picture of the premises known as 148 Spruell Spring Road was introduced in evidence, and it shows that the garage apartment building is located at the end of a driveway which runs from the road alongside the residence of Mrs. Barron to the apartment, and that the two houses were on the same lot. There was no evidence, direct or circumstantial, that the Barron residence was near a county line, or that the Barron lot was located in two counties.
Where there is no conflict in the evidence, only slight evidence is necessary to prove venue. Climer v. State, 204 Ga. 776 (2) ( 51 S.E.2d 802). Evidence that a burglary took place in a smokehouse contiguous to the house of the prosecutor, and that the prosecutor's home was in Emanuel County, has been held to be sufficient proof that the smokehouse was in Emanuel County. Such outhouse, being contiguous to and within the curtilage or protection of the dwelling, is to be considered as a part of the dwelling. Williamson v. State, 58 Ga. App. 389 (1) ( 198 S.E. 552); Code, § 26-2401.
Counsel for the defendant insist that, under the rulings of this court in Gosha v. State, 56 Ga. 36, Futch v. State, 90 Ga. 472 ( 16 S.E. 102), and Green v. State, 110 Ga. 270 ( 34 S.E. 563), the evidence in this case was not sufficient to establish the venue as being in Fulton County. In the Gosha case, the only proof of the place where the crime was committed was that it took place within 50 yards of a residence which was located in Sumter County, but there was no evidence that it took place on the premises where the dwelling was located. In the Futch case, the only evidence of the venue was that the homicide was committed in a buggy shelter about 25 to 30 steps from the home of a Mrs. DeLoach, which house was in Tattnall County, but the shelter was outside of her lot. Furthermore, this court, in Lee v. State, 176 Ga. 215 (2), 218 ( 167 S.E. 507), refused to follow the ruling in the Futch case. As to the case of Green v. State, the defendant was charged with burning a barn, and the only evidence as to venue was that of the owner of the barn, who testified that the house he lived in was in Floyd County, and across a public road was the barn which was burned.
The positive evidence in this case is that the homicide took place on the premises known as 148 Spruell Spring Road, which was in Fulton County, and there being no evidence upon which to base even a bare conjecture that the garage apartment located on such premises was not situated in Fulton County, or that it was anywhere near a county line, we hold that venue was sufficiently proved. See Climer v. State, 204 Ga. 776 (2) (supra).
2. It is contended that the conviction of the defendant rests solely upon circumstantial evidence, since the only evidence as to how the homicide took place was the statement of the defendant, which, the defendant contends, shows that the defendant, in jest snapped the pistol, believing that it was unloaded; and that — there being no evidence to show malice — at most the defendant under the evidence would have been guilty of involuntary manslaughter; it being asserted that there was no evidence of any ill will or altercation between the parties, or any circumstances which proved any motive or malicious intent on the part of the defendant to take the life of the deceased.
In the statement of the case, we have fully set out the material evidence, and will not repeat it here. There was no eyewitness to the killing, but the defendant in his extra-judicial statement, and in his statement to the jury, admitted that he inflicted the mortal wound by shooting the deceased with a pistol, and such admitted fact is to be taken as direct and not mere circumstantial evidence ( Bowen v. State, 181 Ga. 427, 182 S.E. 510, West v. State, 200 Ga. 566 (3), 37 S.E.2d 799), and therefore the conviction of the defendant was not wholly dependent upon circumstantial evidence.
Where one shoots at another with a pistol and hits him, the law presumes prima facie that he did it with malice, and this presumption is not rebutted by proof that the parties had been good friends, or that the defendant immediately after the shooting regrets the act. If one shoots another in sport, he is responsible for the consequences of his act, and malice will be implied from the recklessness of his act. Collier v. State, 39 Ga. 31 (2). To intentionally point or aim a pistol, loaded or unloaded, in fun or otherwise, at another, save in the instances excepted by the statute (Code, § 26-5107), is unlawful; and if, while performing such unlawful act, the pistol is accidentally discharged, the person so acting, if not guilty of murder, would be guilty of involuntary manslaughter. Leonard v. State, 133 Ga. 435 (5) ( 66 S.E. 251). In the instant case, there is no evidence that the defendant accidentally discharged the pistol, but it appears that he deliberately aimed the pistol at the deceased and pulled the trigger. His contention is that he had no intention to shoot, because he believed that the pistol was not loaded with cartridges. The fact that the defendant did not believe the pistol to be loaded would not relieve him from the consequences of his act, if he intentionally and recklessly discharged a pistol aimed at another. Under such circumstances, where the act is one that would naturally tend to destroy human life, and death results therefrom, he would be guilty of murder. Austin v. State, 110 Ga. 748 (1) ( 36 S.E. 52). The court charged the jury that, if they believed the defendant pointed the pistol at the deceased and pulled the trigger believing that the pistol was not loaded, then they would not be authorized to find the defendant guilty of murder. The court also instructed the jury on the law of involuntary manslaughter in the commission of an unlawful act, and that the defendant would not be guilty of any offense if they found the killing was the result of accident or misfortune. Thus, under the charge given and the evidence before them, the jury were at liberty to accept or reject the defendant's version of the killing, which appeared solely from his statement. Under the evidence, the jury were authorized to find that the killing resulted from the defendant's reckless disregard of human life, which was the equivalent of a specific intent to kill, and that the wilful and intentional act of shooting a pistol at the deceased was productive of violence resulting in the destruction of a human life. Leonard v. State, 133 Ga. 435 (supra); Myrick v. State, 199 Ga. 244 (1) ( 34 S.E.2d 36). There were other facts and circumstances from which the jury could conclude that the killing resulted from malice and not from accident or misfortune. The conduct of the defendant from the time of the shooting to his arrest indicates a guilty mind, and not the mind of an innocent man. These facts and circumstances are fully set out in the statement of the case, and show that the defendant made every effort to destroy evidence as to his identity, and to destroy physical evidence that could have identified him as being the man who was in the garage apartment on the night of the killing. It further appears that it was 11 days after his arrest before he made any admission as to the killing, and that prior to his trial he gave two separate versions as to how the killing took place, which were not in accord with the version that he gave on the trial of the case.
The evidence supports the verdict, and there was no error in overruling the motion for a new trial.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., who dissents.