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Assault with intent to murder. Gwinnett Superior Court. Before Judge Pittard.
NICHOLS, Presiding Judge.
1. A witness may testify as to what he has observed.
2. It was not harmful error to admit into evidence two bullets where the defendant admitted the shooting and based his defense solely upon the ground of self-defense.
4. Where a witness testifies as to the general good character and reputation of the defendant, it necessarily includes the trait as to peaceableness.
5. The excerpt from the charge complained of in special ground numbered 8 was not error for any reason assigned.
6. A request to charge not perfect in every respect is properly refused.
Everett Pruitt was indicted and convicted of assault with intent to murder his brother Jewell Pruitt by shooting him with a pistol. Thereafter, the defendant's amended motion for new trial was overruled and the defendant appealed and enumerated as error the judgment overruling such motion for new trial. In his brief filed in this court the defendant expressly abandoned the usual general grounds of the motion for new trial and relies exclusively upon the special grounds of such motion.
1. The first special ground of the motion for new trial, numbered 4, complains of the admission of evidence as to whether the defendant's condition was influenced by medicine prescribed by a physician. The witness was asked if he knew what effect the medicine had on the defendant and, after the objection was made that the answer would constitute a conclusion, the trial court ruled the witness could testify as to what he had observed. It was not error to permit such witness to testify as to what he observed of the defendant's conduct and such testimony was not a conclusion. See Wells v. State, 110 Ga. App. 507 (139 SE2d 151); General Gas Corp. v. Whitner, 110 Ga. App. 878 (7) (140 SE2d 227).
3. Under decisions exemplified by Bell v. State, 71 Ga. App. 430 (31 SE2d 109), it was not error to admit in evidence a diagram of the house where the shooting admittedly took place although it was not drawn to scale. Therefore, special ground numbered 6 of the motion for new trial was properly overruled by the trial court.
4. Special ground 7 of the motion for new trial complains that the trial court erred in refusing to permit a witness for the defendant to testify as to the character and reputation of the defendant for peaceableness.
Assuming that under the decision in Powell v. State, 101 Ga. 9 (1a) (29 SE 309), the question was proper, and that the defendant is not barred by failing to inform the court of the expected answer to such question (see Parrish v. State, 88 Ga. App. 881 (78 SE2d 366); Barfield v. Aiken, 209 Ga. 483 (6) (74 SE2d 100); and citations), yet where such witness testified as to the general good character of the defendant the answer necessarily included the one trait sought to be brought out by the defendant and no harmful error is shown by this ground of the motion for new trial.
5. Special ground 8 complains of the following excerpt from the charge: "If you find from the evidence that the defendant used an instrument, and if you further find that the instrument in the manner in which it was used was a weapon likely to produce death, then the law from the use of such weapon in such manner would imply malice." Under the decisions of the Supreme Court exemplified by Hogan v. State, 61 Ga. 43, such charge was not error.
6. The sole remaining special ground, numbered 9, complains that the trial court erred in refusing to give the jury a requested charge which included language authorizing the defendant to shoot the prosecutor in self-defense, although no felonious assault was being committed upon the defendant, was properly overruled. See Love v. State, 14 Ga. App. 49 (2) (80 SE 209).
Reid Merritt, Solicitor General, for appellee.
Gene Reeves, Jr., Richard M. Craig, for appellant.
Friday May 22 20:25 EDT

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