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MORRIS et al. v. THE STATE.
37182.
TOWNSEND, Judge.
Shooting at another. Toombs Superior Court. Before Judge Humphrey. March 8, 1958.
1. Reginald Morris and Bobby Beckworth were convicted of the offense of shooting at another on an indictment charging them with assault with intent to murder. The court charged: "The defendants are presumed in law to be innocent of the charge until and unless the evidence satisfies your minds beyond a reasonable doubt as to their guilt. The burden of producing such evidence is on the State." Error is assigned on grounds that the charge is not sufficiently full and on the use of the word "evidence" instead of "proof".
(a) Substantially the same charge was held in Wages v. State, 56 Ga. App. 365 (2) (192 S. E. 652) to be sufficient, in the absence of a specific request for further instructions.
2. Special ground 2 complains because the court, in charging on the credibility of witnesses, repeated the pertinent portions of Code 38-107. Error is assigned on his failure in this connection to charge the last sentence as follows: "The jury may also consider the number of witnesses, though the preponderance is not necessarily with the greater number." A similar charge, also omitting the last sentence, was approved in Thompson v. State, 160 Ga. 520 (1) (128 S. E. 756). This Code section, at least insofar as it refers to preponderance of evidence, has no place in a criminal case, and, although the rules therein laid down as to determining the credibility of witnesses may be given in a criminal case, the omission of some one of the tests listed in Code 38-107 is not ordinarily ground for reversal. Eller v. State, 48 Ga. App. 163 (1) (172 S. E. 592).
3. In special ground 3 it is contended that the court erred in charging the elements of the offense of assault with intent to kill because the court did not in connection therewith charge "the law of self-defense or other circumstances of justification or mitigation" and because there was no evidence to show that one of the defendants shot at the prosecutor.
(b) "The failure to charge some other legal proposition applicable to the case is not available for an assignment of error on a charge in itself correct." Howell v. State, 124 Ga. 698 (2) (52 S. E. 649); Harvey v. State, 121 Ga. 590 (2) (49 S. E. 674); Hicks v. State, 146 Ga, 221 (6) (91 S. E. 57); Johnson v. State, 150 Ga. 67 (3a) (102 S. E. 439). This ground and special ground 5, which contains a like defect, are without merit.
4. (a) Evidence that the defendants were both armed, that they followed the prosecutor's car at night, passed it, backed up to it, forcing it in the ditch; that one of the defendants shot a pistol, that the prosecutor then shot at and wounded that defendant, and the other defendant, Morris, shot at and wounded the prosecutor, is sufficient to support an inference that the defendants were acting in concert with the intention of inflicting bodily harm upon the prosecutor, and authorized a charge on conspiracy.'
(b) That the court defined a conspiracy as "an agreement to do an unlawful act" is not reversible error because the court failed to characterize it as "a corrupt agreement." Any agreement to do an unlawful act is illegal, and, in that sense, corrupt.
5. The evidence, a part of which is set out above, was sufficient to support the verdict of guilty of shooting at another as to both defendants.
The trial court did not err in denying the motion for new trial.
W. H. Lanier, Solicitor-General, contra,
J. Ellis Pope, Jackson & Graham, for plaintiffs in error.
DECIDED JUNE 23, 1958.
Saturday May 23 01:23 EDT


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