Mangum v. The State

Mangum v. The State. Assault With Intent to Murder. (Decided June 11, 1908. 47 South. 104.) 1. Homicide; Assault with Intent; Evidence; Bes Gestae. — Evidence of the fact that a large number of people were present at the scene of the shooting was admissible as a part of the res gestae. 2. Charge of Court; Directing' Verdict. — Where .there is evidence to support the charge, the court properly declines to direct a verdict for defendant. 3. Same; Misleading Instructions. — Where, under the evidence, it is open for the jury to find that the defendant was guilty of an assault with intent to murder, a charge asserting that the offense of assault and battery was included within the indictment, and that if the jury had a reasonable doubt of defendant’s guilt of assault and battery, they should acquit the defendant, was misleading and properly refused. Appeal from Lowndes Circuit Court. Heard before Hon. J. C. Richardson. Raster. Mangum was convicted of an assault with intent to murder George Davis, and sentenced to a term of eight years, and he appeals. Affirmed. Upon the examination of one of the witnesses, the witness testified that when the first shot was fired the ball struck the witness in the left eye, and witness asked defendant what he shot him for, and defendant made no 'reply, but shot again, missing witness, and striking Frank Reese in the heel. Witness also testified that there was a large number of people in the section house when the shooting was going on. Objection was interposed to this last testimony, and motion made to exclude, which was overruled. The defendant 'requested ^two charges, which were refused: (1) The affirmative charge. (2) “Comprehended within this indictment is the offense of an assault and battery, and if you have, from the evidence, a reasonable doubt of the defendant’s guilt of an assault and battery, you will find the defendant not guilty.” Pearson, Richardson & Goldsmith, for appellant. No brief came to the Reporter. Alexander M. Garber, Attorney-General, for the State. [MAJORITY — MdOLELLAN, J.] MdOLELLAN, J. The testimony tending to show the presence of a large number of people at the scene of the shooting was of the res gestse and clearly admissible. Nor was there error in the refusal to the defendant of the general charge, since there was abundant evidence upon which to rest a conviction of assault with intent to murder, as charged in the indictment. Charge 2, requested for the defendant, was well refused. It ' predicated an acquittal upon reasonable doubt of his guilt of assault and battery; whereas, under the evidence, it ivas open to the jury to find him guilty of the felony charged in the indictment. The charge was calculated to confuse the jury, if not otherwise bad. There is no error in the record, and the judgment is affirmed. Affirmed Tyson, C. J., and Anderson and Denson, JJ., concur.