1. On a trial for the offense of assault with intent to murder, where the evidence involves also the offense of illegally shooting at another, it is the duty of the court to charge the law of illegally shooting at another. In those classes of cases known as reducible felonies it is purely discretionary with the court as to whether the recommendation is followed and defendant punished as for a misdemeanor. A failure to follow such recommendation and impose the term of years fixed by the jury is not reversible error. This is true regardless of the fact that it might be surmised that the jury returned the verdict believing that the judge would follow the recommendation and impose a misdemeanor punishment.
2. "The jury may infer the deadly character of the weapon from the effect produced."
3. In a trial of a case of assault with intent to murder, the nature and extent of the wound is admissible for the purpose of illustrating whether or not the attack was made with intent to unlawfully take human life, and also for the purpose of showing the character of the weapon used.
4. The inaccessibility of a witness is to be determined within the sound manifest abuse of discretion. This is true notwithstanding the fact that discretion of the court and will not be disturbed unless there is a a witness had been at one time previously subpoenaed in the case and appeared and testified and a transcript of his testimony was incorporated in the record of the previous trial where a new trial was granted; where it further appears that the witness attended the previous trial by permission of the military authorities when it is shown as in this case that no further notice or subpoena was given the witness as to when he should further appear; and where it is shown that the absence of the witness was not made known to the court until after the issue had been joined on the indictment and the State had made out its case.
5. This court will look to the charge as a whole, and not to isolated excerpts from it, in determining its sufficiency. DECIDED JUNE 8, 1943. ADHERED TO ON REHEARING JULY 21, 1943. On an indictment charging the offense of assault with intent to murder the defendant was tried and convicted of the offense of illegally shooting at another. He filed a motion for new trial, which was duly amended by adding nine special grounds. The court overruled the motion, and the defendant excepted. *Page 698
Briefly, the evidence shows that H. B. Gober, the prosecutor, (shot by the defendant), and the defendant had not been on good terms for several years because of a difficulty concerning a well-bucket which the prosecutor accused the defendant of taking. The State's evidence shows that on the day of the shooting the prosecutor drove by a store and gasoline filling station. The defendant was on the inside. The prosecutor did not know the defendant was in the store. The defendant called to the prosecutor, and again brought up the question of the bucket. Heated words followed between them. As the defendant came out of the store to the front, and the prosecutor went into the store, they met near the door of the store, on the outside. The defendant said to the prosecutor: "You are just a ____ damn liar if you say I got your well-bucket." The prosecutor said: "Don't call me that," started toward defendant, and hit him on the head with his fist. After the defendant had been hit he said to the prosecutor: "You son of a bitch, I will shoot you." The defendant took his pistol from his pocket and began shooting toward the prosecutor, hitting him twice. Such, briefly, is the State's testimony. The defendant's contention was that the prosecutor made the first opprobrious remarks to the defendant, and, in a threatening manner, began advancing toward him with a pocket knife, a weapon likely to produce death; that defendant remonstrated with prosecutor in an effort to get him to stop advancing with the knife; that the prosecutor was not restrained, and defendant shot the prosecutor in self defense. Defendant further contended that prosecutor had on numerous occasions and in crowds, accused him of stealing a well-bucket; that when he would meet defendant he would call defendant a well-bucket; all of which the prosecutor denied.
1. Under the general grounds and special grounds 1, 2, 6, and 7 of the motion, the defendant contends that the evidence did not support a verdict of shooting at another; that the only issue involved was guilty or not guilty of the offense of assault with intent to murder and that therefore the court should not have submitted for the consideration of the jury the offense of illegally shooting at another. The jury, after considering the case "some time," returned a verdict of guilty of the offense of shooting at another, and fixed the punishment at one year in the penitentiary, with a recommendation that the defendant be punished as for a misdemeanor. *Page 699 The court disregarded the recommendation, and sentenced him to serve one year in the penitentiary. Able counsel argue that this was a compromise verdict, and that the jury would not have convicted the defendant had they not believed that the judge would have imposed a fine. This is pure speculation, and under the facts of this case presents a question that is not within the scope of the authority of this court to determine. So far as the evidence is concerned, it would have authorized a verdict of assault with intent to murder, as conceded by counsel for the defendant in error. In this we agree, but we are unable to agree with the earnest argument that the evidence is insufficient to support the lesser offense which the jury found the defendant guilty of, that is, shooting at another.
The record shows that the jury was amply authorized to return a verdict for the offense of shooting at another on the theory that the defendant was actuated, not by malice, but by a sudden heat of passion, supposed to be irresistible. The long ill-feeling which existed between the two parties, and the previous difficulties which they had had were sufficient, under the law, for the jury to conclude that the shooting was prompted by passion instead of malice, and that had the prosecutor died, the defendant would have been guilty of voluntary manslaughter. The learned judge charged fully the law on every phase of the case. As to whether the judge should have followed the recommendation of the jury, this was within his discretion, and the record does not show that he abused this discretion. As to that contention we have no authorized concern. The court did not err in overruling the motion for new trial in so far as the general grounds and special grounds 1, 2, 6, and 7 of the motion are concerned.
2. Special ground 3: The doctor who treated the prosecutor for pistol wounds testified that he removed a pistol bullet from the arm of the prosecutor. He described another wound as coming through the left shoulder from the front and passing out from the shoulder blade on the back about three inches from the heart. Over objection the court allowed the doctor to testify: "The weapon used in producing these wounds would likely produce death." The defendant contends that the admission of this testimony was error. The character of the weapon used may be determined from the character of the wound or other circumstances. Paschal v. *Page 700 State, 125 Ga. 279 (54 S.E. 172); Jackson v. State,56 Ga. App. 374 (192 S.E. 633). Compare Kennedy v. State,68 Ga. App. 852 (24 S.E.2d 321). The bullet which the doctor removed was introduced in evidence. The defendant admitted that he shot the prosecutor with a pistol. This ground is without merit.
3. Ground 4 complains that the court permitted the prosecutor to testify over objections of defendant as follows: "By reason of the wound inflicted on me that day by Mr. Brooks I was disabled twelve months. But I worked some with my left hand. I could not work any with my right for a period of twelve months. No, sir, I have not yet recovered from those injuries." The objections argued against the admission of this testimony are, that the jury were thereby prejudiced against the accused and were asked to find the defendant guilty because the prosecutor had suffered and would still suffer from the injuries regardless of whether the defendant was justified in inflicting the wounds or not, and that the admission of such testimony was hurtful, and not material to any issue involved in the case. In the trial of a case of assault with intent to murder, the nature and extent of the wound is admissible for the purpose of illustrating whether or not the attack was made with intent to unlawfully take human life.Reece v. State, 60 Ga. App. 195 (3 S.E.2d 229). And such evidence is also admissible for the purpose of showing the character of the weapon used. Nelson v. State, 4 Ga. App. 223 (160 S.E. 1072).
4. Ground 5: The defendant was tried October 6, 1942, at the September adjourned term of Madison superior court. When the case was called, both sides announced ready. Issue was joined and a jury chosen, empanneled and sworn to try the issue formed on the indictment for assault with intent to murder. The State introduced evidence, made out its case and rested. The defendant then proceeded to introduce evidence. During the progress of the defense, it appeared to the court for the first time that Hoyt Dickson, a witness for the defendant, who testified in a former trial of the case, was not present, although he had been previously subpoenaed. The record does not reveal whether the witness had been subpoenaed again since his appearance as a witness in the former trial. It appears from the record that the absent witness was in the military service of the United States Government at the time of the trial, and had been for more than a year at the *Page 701 time of the former trial. The absent witness was stationed at a camp near Valdosta, and had attended the regular September term of Madison Superior Court for the purpose of appearing as a witness for the defendant in the same case. It does not appear from the record that any effort was made by the defendant or his counsel to have the witness present at the trial on October 6, 1942, at the September adjourned term. It does not appear that when the case was called for trial, and announcement of ready was made, any motion for continuance or postponement of the trial was made to the trial court on account of the absence of the witness. It does appear that the first knowledge the trial court had that the witness was absent and that the record of his testimony on a former trial would be offered, was after the State had made out its case and rested. Counsel for the defendant stated that they had been but recently employed in the case, and that the defendant, being in jail by reason of his bond having been forfeited, insisted on a trial rather than remain in jail, and, assuming that the witnesses were all present, they had announced ready. Under these circumstances, on objection from State's counsel, the court refused to allow the introduction of the record of the testimony of the absent witness on a former trial of the case. It is well established that whether or not a witness is inaccessible to the court is left to the sound discretion of the trial court, and his ruling will not be disturbed unless manifestly abused. In Sheppard v. State, 167 Ga. 326 (3) (145 S.E. 654), the court held: "The question of the inaccessibility of a witness is one for determination by the trial court in the exercise of a sound discretion." SeeRobinson v. State, 128 Ga. 254 (57 S.E. 315); Estill v.Citizens Southern Bank, 153 Ga. 618 (6-b) (113 S.E. 552); Goodwin v. State, 49 Ga. App. 223 (174 S.E. 742), and cit.; Norris v. State, 58 Ga. App. 399 (198 S.E. 714).
We may concede that a witness in the military service of the United States Government is inaccessible to the State courts in so far as being forced to appear as a witness is concerned. At the same time it is a matter of common knowledge that the military authorities and the State court officials are very co-operative in carrying on both units of government. No doubt had due diligence been exercised in order to obtain the presence of the witness, he would have been present. Indeed the record discloses that he *Page 702 was present in answer to a subpoena at the regular September term of the court for the purpose of testifying in this particular case. No doubt if the matter had been called to the attention of the trial judge, he would have exercised all the discretion and power vested in him to use the processes and good offices of the court to have the witness present to testify. Failing in this, then no doubt he would have permitted the admission of the testimony of the witness given on the former trial. But in the exercise of his sound discretion he was justified, under the law, in excluding such testimony. There is no merit in this contention.
5. Grounds 8 and 9 assign error because the court allegedly did not charge, in proper sequence and fully, the contentions of the defendant as supported by the evidence. Taking the charge as a whole, as this court is bound to do, there appears no reversible error. Boram v. Thweatt, 45 Ga. 94; Guerin v.Danforth, 45 Ga. 493; Garmany v. Lawton, 124 Ga. 876 (53 S.E. 669, 110 Am. St. Rep. 207). These grounds do not allege error as to the correctness of the charge which the court gave, however, but contend that the court should have gone more into detail as to the contentions of the defendant and should have done so in proper sequence. We have examined the charge carefully in the light of the exceptions contained in these grounds, and find no merit in them. The charge as a whole is fair and complete, and instructed the jury as to the issues involved under the facts of this case. The assignments of error on these grounds are not meritorious.
The judge did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.
ON REHEARING.