
    29682.
    BOND v. THE STATE.
    
      Decided September 18, 1942.
    
      
      D. W. Mitchell, for plaintiff in error.
    
      J. H. Paschall, sqlicitor-general, Stafford B. Broolee, contra.
   Gardner, J.

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, 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 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 in Kendrick 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, G. J., and MacIntyre, J., concur.  