The appellant's counsel thus states the case:
"The defendant was tried with one Tillman Mayers for assault and battery with intent to kill. At the conclusion of the State's case a motion for direction of verdict was made as to both defendants. It was granted as to Mayers and refused as to Smith.
"The case arose out of the alleged shooting of one Earle Asbill in a swamp in the nighttime by same while the Constables were watching for someone to come to some stilling apparatus and material in the swamp. There are five exceptions *Page 312 which can be considered in three groups:
"(1) The Circuit Judge should have directed a verdict as to the defendant, Smith.
"(2) The verdict of the jury was contrary to the instruction of the Judge, and was error, the same being a general verdict of guilty on all counts.
"(3) The Circuit Judge erred in charging the law of conspiracy."
As to the directed verdict asked for: The evidence shows that there were two men. One had a pistol and flashlight. The light was thrown and witnesses recognized Smith. No witness puts a pistol in Smith's hands. Mayers had the flashlight and by the light of the flashlight witness recognized Smith. Smith went to the barrel by the light held by the other man. The other man did not go to the barrel. None of the witnesses recognized the man who actually did the shooting. Earle Asbill, the one who was shot, said:
"That they got there about nine o'clock, and waited for a while until they heard a boat coming down, and that he was sitting near a tree; that one of the men got out of the boat, the taller one of the two, and came up with a flashlight in one hand and a pistol in the other, and came up and shot several times, and hit the witness once; that witness did not recognize either one of them at all; that witness was between Mr. George W. Asbill and the other man who did the shooting."
Under the evidence in the case the appellant should not have been convicted. Even if he was there with his codefendant who violated the law as to distilling, that was a misdemeanor and not a felonious act. He might have been acting in concert with his codefendant to violate the law as to distilling, with no intent to participate in a shooting. His Honor having directed a verdict of not guilty as to his codefendant, his charge as to the law of conspiracy was prejudicial to the appellant, as the case, when *Page 313 submitted to the jury, had narrowed down as to whether he, himself, did the shooting. The evidence admits of no other inference than that the man who had the flashlight and pistol did the shooting, and not the appellant.
The motion for a directed verdict should have been granted, I think, and judgment should be reversed.
MR. JUSTICE COTHRAN concurs.