Opinion
40905.
DECIDED SEPTEMBER 22, 1964.
Assault with intent to murder. Troup Superior Court. Before Judge Knight.
Wyatt Wyatt, for plaintiff in error.
Wright Lipford, Solicitor General, E. W. Fleming, Assistant Solicitor General, contra.
Where a motion for new trial on the general grounds only is made following a conviction of assault with intent to murder, the defendant admitting the blow but contending that it was given in self-defense, and the evidence is in conflict on this issue, the discretion of the trial court in denying the motion will not be disturbed by this court.
DECIDED SEPTEMBER 22, 1964.
The victim, Willie George James, his brother Jim Henry (Jack) James, a second cousin Robert Lee Lindsey, and a woman, drove in an automobile which they parked in front of the home of Henry Reed, brother of the defendant Frank Reed, this house being two houses down from the defendant's home. Henry Reed was married to a former wife of Willie George, and Willie George's two children by this marriage were living with their mother in his home. Willie George, who was half blind, got out of the car in order to see his children. The little girl who was playing in the yard ran up to him. The boy was with Henry Reed in Frank Reed's house, Henry playing a guitar and Frank lying down on a bed in the bedroom. Also present among others in the house was Rosemary Reed, wife of the defendant, and Terry Trammell. The defendant went out of the house into the yard or street, slit the coat of Jim Henry James, and struck Willie George James on the side of the head with an axe. Blood was found by the arresting officer at the side of the road but none in the house; the bloody axe was found inside the house.
The above statement covers those facts of the case which appear to be uncontroverted. The remaining testimony is in sharp conflict. Those witnesses who testified for the State in general insisted that neither Willie George nor Jim Henry ever entered Frank Reed's house, and that Frank came out into the yard with the axe and apparently without any provocation. The defendant's witnesses insisted with some unanimity that both Willie George and Jim Henry entered the house with Robert Lee Lindsey and that Lindsey hit or shoved the Terrell woman, after which the defendant got in an altercation with him. Robert Lee testified that Henry Reed had a knife with which he threatened Willie George. Terry Trammell testified that Jim Henry was in the house but Willie George was not. Rosemary testified that Willie George was in the house with a knife, Frank ordered him out, and Jim Henry tried to get his brother to leave, and that Willie George drew a knife on Frank while in the house. Henry testified that the first time he saw Willie George with a knife was after the latter lay on the ground, felled by the blow from the defendant's axe. The defendant testified that Robert Lindsey first came in and struck the Terrell woman, then had an altercation with him; that about this time Willie George came in "and helped this boy. That's the reason I hit him. And, so, when I told them to get out, he went out to the front porch and didn't go all the way out. And, so, this boy Lindsey, he come back in the house and reach in his pocket to get his pocket knife. I said, `Didn't I tell you?' I had the axe in front of the bed and I jumped up and rared back and when I rared back they run out then and when they run out I hit." The defendant also testified that both Lindsey and Willie George had knives, and that Jim Henry walked to the car and got a gun, that Willie George pulled out his knife and was coming up on the defendant when he hit him with the axe; that he had told them to get out of the house and they would not leave. Some or all of the persons involved had been drinking.
The jury found the defendant guilty of the offense of assault with intent to murder. Error is assigned on the denial of a motion for new trial based on the general grounds only.
"It is well-settled law that the jury, in a criminal case, in listening to the testimony of a witness, have the authority to consider his appearance and demeanor while testifying, his interest, if any, in the case, and the probability or improbability of his testimony, and to believe it or reject it, or to believe a part of it and to reject other parts, and especially is this true where the witness is a near relative." McElwaney v. State, 66 Ga. App. 112 ( 17 S.E.2d 202). From the testimony set out above, the jury might have concluded (a) that the victim never went to the defendant's home at all, but the defendant came out with an axe and without any provocation hit him in the head; (b) that the victim and others went into the defendant's house in an aggressive and obstreperous manner and were forced out, but the defendant then followed them into the road and swung the axe in anger rather than self-defense; (c) that the victim, his brother and cousin were attacking the defendant with knives and a gun and the defendant swung at them in self-defense. Only in the last of these circumstances might the defendant have been justified under the theory of self-defense or defense of habitation. The evidence, accordingly, did not demand a finding of justification, and there was no error in overruling the motion for new trial.
Judgment affirmed. Nichols, P. J., and Hall, J., concur.