1. In a trial for assault with intent to murder the extent of the injury does not necessarily determine the degree of the crime. To sustain a charge of assault with intent to murder, it must appear that there was an unlawful assault with intent to kill, with malice, upon the person of a human being, with a weapon likely to produce death in the manner in which it was used at the time, and under such circumstances that if death had resulted the defendant would have been guilty of murder. If the element of malice is lacking under such circumstances, and yet the assault is unlawful, there would be committed a crime of lower degree than assault with intent to murder. The degree of the injury alone would not determine the degree of the offense. Under the facts of this case the verdict of assault with intent to murder was sustained.
2. The provision of Code § 38-119 to the effect that where the party has evidence in his power and within his reach by which he may repel a claim or charge against him, and omits to produce it, there is a presumption that such charge is well founded, is not applicable in the trial of a criminal case. Consequently it is error for the solicitor-general to argue the provisions of this section in the trial of a criminal case. Where the solicitor-general does so and a motion for mistrial is duly made and the court promptly and thoroughly instructs the jury to disregard such argument for the reason that such principle of law is not applicable in the trial of a criminal case, it is not error for the *Page 16 court to overrule a ground of a motion for new trial which assigns such argument as error requiring the grant of a new trial.
DECIDED SEPTEMBER 18, 1942. Taft Bond was convicted of assault with intent to murder. In addition to the general grounds of the motion for new trial he contends that he is entitled to a reversal on three special grounds.
Elisha Bond, the brother of the defendant, was separately indicted and jointly tried for assault with intent to murder Nathan Ridley. The evidence for the State may be briefly summarized as follows: Before the shooting of Nathan Ridley, Elisha Bond sued out a peace warrant for E. D. Ridley, the brother of Nathan. On the day of the shooting Clarence Ridley, another brother of Nathan Ridley, after having discussed with the sheriff the advisability of discussing the matter of the peace warrant with Elisha Bond, came into town in an automobile with his brother, Nathan Ridley. Clarence Ridley got out of the car in which he and Nathan were riding and Nathan rode away. Clarence Ridley found the defendant and Elisha Bond in a pool-room. Clarence Ridley and Elisha Bond left the pool-room for the purpose of discussing the peace warrant. Shortly after they left, Taft Bond followed them to the outside of the pool-room with a cut-off billiard cue in his hand. Upon arriving at the point where Clarence Ridley and Elisha Bond were talking, Taft Bond provoked a difficulty, and an encounter ensued. This seems to have been more of a fist and tussle fight. About the time this subsided Nathan Ridley returned with a companion, alighted from his car a short distance from the place of the fight, and started walking in another direction, Elisha Bond and the defendant having gone to their automobile to obtain a shotgun. Elisha Bond shot Nathan Ridley in the side of his body. Nathan fell to the ground; when he started to rise, Elisha shot him again. Nathan proceeded in the direction of a garage, and was begging some one there to obtain a doctor for him; whereupon the defendant, with an oath, stated: "I am going to finish you up," and as Nathan was leaving, Taft Bond shot him in the back at close range with a shotgun. There was no evidence that Nathan had taken any part in the previous difficulty, or that he knew what it was about or who was concerned in it. He was not *Page 17 armed in any manner. He had not had any difficulty with the defendant or with his brother. Nathan Ridley testified: "On my left shoulder where you are touching there is a large number of holes or scars, that is where Taft shot me in the back. These shot in the ear and behind the ear is where Taft Bond shot me in the back, some of those shot went in my ear."
Houston Green, sworn in behalf of the State, testified: "I work at the Track Side Gas Station. I was at work there on the 3rd day of January of this year. Yes, I know Nathan Ridley over there. I also know Taft Bond. . . Yes, I saw him [Ridley] as he came up [to the filling station]. Yes, he was injured when he came up; he was bleeding. As to how he was holding his arm, well, the best I remember he had hold of the one that was shot with the other hand. I was greasing a car and this Ridley boy came running down there and ask us to get him to a doctor as quickly as possible, that he was shot. . . Just about that time I looked up the street, and here come Taft Bond with a gun and ask, `Where did he go?' and nobody didn't say anything. . . I didn't want to tell him where he was; I was afraid he would shoot him; and the Ridley boy raised up and he commenced begging, and he said, `Please, Taft, don't shoot me any more, I don't know what it is all about.' . . I then heard a gun fire." The doctor testified: "Yes, a shotgun such as one of those you hold in your hand and made the injuries that I found on Nathan Ridley's body. I would say that those were such weapons used in the way and manner I found was used, is a weapon likely to produce death." The same doctor further testified: "As to whether or not the wounds that I found on Nathan Ridley, that I found him to be suffering from, as to whether or not they were such wounds as within themselves would likely produce death, well, not within themselves, without infection. Under proper surgical care, as to whether or not it is not likely that any gangrene will set up, well, it has not yet. As to how long that has been, well, I visited him on January 4th the first time; he had emergency treatment at the hospital, I believe about the 2nd or 3rd, when he was hurt, but I saw him the first time on January 4th, at his home. As to whether or not he has any infection to-day, well, no marked infection. He has quite a bit of infection in the neck from those pieces of overalls and shirt buried in his neck. As to whether or not under *Page 18 proper surgical treatment he will not have any more infection, well, at the present time we are very hopeful that he will not have no fatal outcome from it, or any dangerous result. As to whether or not then, in my opinion, those wounds that I found him to be suffering with were not such wounds as would likely produce death, well, not now."
The defendant made a statement but introduced no evidence. His statement was as follows: "Me and my brother had started a-hunting. We went down to Gail Kenner's and Gail wanted the dogs to go hunting, him and his father-in-law and brother-in-law. We come back over to Wade's pool room; we went in there. We had been in there I guess about five minutes and Clarence Ridley come in the front door, and Elisha went around the pool table and went out. Clarence Ridley followed him. I got up and followed them both out. Elisha stepped about one or two steps from the curb out into the street. Clarence Ridley stepped out on the sidewalk and says `Wait a minute there.' I stepped out. I was out the door then, and when he says `Wait a minute there,' Elisha, my brother, turned around. When he turned around he [Clarence Ridley] put his hand in his front pocket. I says, `Don't you cut him, Clarence.' He [Clarence] says, `What in the hell have you got to do with it?' I says, `Don't you cut him.' I had a piece of stick in my hand that Mr. Wade gave me. I was sitting there at the stove whittling on the end of it when he come in. I struck at him with the stick and missed him. They had already said they was going to kill us. We both scuffled over the stick. In scuffling over the stick he says, `Damn you, this is not over.' I says, `Well, we can't do nothing holding the stick; let's put it back in the pool room.' We went to the door of the pool room and it was locked, and we went between the sidewalk and street and threw the stick across the street. We went to fighting, and while we was fighting we stumbled back over the sidewalk, about that high [indicating], and he fell on the bottom. My brother come up and told me to get off of him. I started to get up, and when I started to get up he grabbed my clothes right there, tore my overalls and shirt, and he got my thumb in his mouth, and while he had my thumb in his mouth he got on top of me and hit me three or four times in the back of the head with a knife, with the jaws or blade of the knife, I don't know what. He cut *Page 19 three places on my head, and he cut me across the nose, and hit me once in that eye, and once in that eye [indicating], and the blood was just running out of my face; and I heard a gun shoot, I didn't know who shot it. He jumped up off of me and I run across the street holding up my clothes, and I didn't see Elisha, didn't see anybody, and that old pump gun was in the back of the car. I got it out and run down to the filling-station. When I run down to the filling-station one of the Ridley boys was trying to get in a coupe car, the best I could tell, and I knew that they had a coupe car, and I figured he was going to get a gun and I shot him."
The evidence set out above is not full, but is the nucleus around which a great deal of evidence was introduced. We see no necessity for detailing it further. 1. It is contended that the evidence did not support the verdict of assault with intent to murder, and that the offense of shooting at another was involved. Defendant argues that from the evidence it appears that the wound inflicted by defendant was not the true measure to determine whether or not he was guilty of assault with intent to murder. The true rule is that if such an assault with intent to kill be made with malice upon a human being, with a weapon likely to produce death in the manner it was used at the time and under the circumstances, that, had death resulted, the defendant would be guilty of murder, then, death not resulting, the accused would be guilty of assault with intent to murder. The extent of the injury which resulted is not necessarily the measure of the degree of the crime committed. So far as the general grounds are concerned, the evidence supported the verdict.
2. Ground 1 complains of a statement made by the solicitor-general to the effect that the principle of law announced in Code § 38-119, that where a party has evidence in his power and within his reach by which he may repel a claim or charge against him and omits to produce it there is a presumption that such charge is well founded, applied to the case at bar. When this statement was made by the solicitor-general the defendant made a motion for a mistrial. The court very properly and immediately instructed the jury that the argument was inapplicable and improper, and, *Page 20 further, that the jury should not consider such argument, and that the rule referred to had application to the trial of civil cases only. It has been many times held that such an argument is improper and erroneous. But in view of the thorough and emphatic statement of the court (which we have not set out in full) to the jury as to the inapplicability of this principle of law, we find no reason to feel that the cause of the defendant was prejudiced by the statement of the solicitor-general. We find no merit in this ground.
3. Grounds 2 and 3 assign error because the court, without a written request, failed to charge the lesser offenses of shooting at another and assault and battery, which were embraced within the allegations of the indictment. This contention presents a question which often arises in the trial of cases similar to the one at bar. It is a question that has given considerable concern to the trial courts and the appellate courts. After a careful consideration of the question it is our opinion that the record subjects the case to the principle of law announced in Tyre v.State, 112 Ga. 224 (37 S.E. 374): "The law relating to the statutory offense of `shooting at another' was not involved in a trial for assault with intent to murder, wherein it appeared that the accused, with threats to kill, wantonly, maliciously, and with the intention of executing these threats, shot directly at the prosecutor with a pistol which, thus used, was a weapon likely to produce death." The special assignment of error in that case was on the ground that the court failed to charge the law with reference to shooting at another. Compare also Kendrick v.State, 113 Ga. 759 (39 S.E. 286). The question before us and the rule laid down in the Tyre case, supra, were very interestingly discussed by Judge Powell in Fallon v. State,5 Ga. App. 659 (63 S.E. 806), one of the cases cited by the defendant, the other cases being Posey v. State, 22 Ga. App. 97 (95 S.E. 325), Hawks v. State, 51 Ga. App. 317 (180 S.E. 363), and Lewis v. State, 14 Ga. App. 503 (81 S.E. 378). The Hawks case, supra, opinion written by the late Judge Guerry in which Judge Broyles dissented, quoted Judge Powell in the Fallon case, supra, as follows: "Since, therefore, it is issuable and a question for the jury, in every case where death does not ensue, whether the defendant's intention in shooting was to kill or inflict a lesser injury, the evidence can not be said to demand a verdict of guilty *Page 21 of assault with intent to murder, even where no justification or mitigation appears, unless, in addition to the fact of the shooting, there be shown such other facts and circumstances as to establish beyond question and the possibility of legitimate dispute that the defendant did in fact intend to kill." Judge Guerry, in speaking of the threats involved in the Hawks case had this to say: "They [the threats] were not made as those inKendrick v. State, 113 Ga. 759 (39 S.E. 286), and Tyre v. State, 112 Ga. 224 (37 S.E. 374), at the time of the actual shooting."
In the instant case, at the time of the shooting, the evidence shows the following with reference to intent to kill: "As to what he said and done, well, I dropped in behind this car, and I says, `Don't shoot me no more,' and he says, `You God damn son of a bitch, I am going to finish you up;' and I dodged in behind the corner of the filling-station and I went several steps off from the filling-station, and I reckon he come around the filling-station and he [Taft Bond] shot me in the back as I went off. No, I wasn't armed at that time. I didn't know why he was shooting me." This evidence places the instant case directly in line with those cases controlled by the principle announced in the Tyre case, and not in line with those relied on by the defendant, the Fallon case and others. In addition to the facts of the shooting, the facts and circumstances of the instant case establish beyond possibility of legitimate dispute that the defendant had in fact intended to kill, and we hold that the record establishes the intent to kill so strongly that it admits of no other legitimate inference. These grounds are without merit.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.