Sullivan v. State

199 S.E.2d 373, 129 Ga. App. 231, 1973 Ga. App. LEXIS 958

• Court: Court of Appeals of Georgia
• Decided: June 18, 1973
• Docket: 47705
• Status: Published

Opinions

Evans, Judge.

The defendant in this case was acquitted of carrying a pistol without a license. He was also acquitted of carrying a concealed pistol (not openly exposed to view). He was convicted of aggravated assault, shooting another with a pistol. Defendant appeals, contending the guilty verdict of shooting another with a pistol, and thus committing an aggravated assault, is repugnant to the verdict of not guilty as to carrying a concealed weapon, and not guilty as to carrying a pistol without a license.

The defendant could have committed aggravated assault by shooting another with a pistol, even though the pistol was licensed and even though it was not concealed. Thus, there is no repugnancy between the verdict of guilty of shooting another, and the verdicts of not guilty of carrying a pistol without a license, and not guilty of carrying a pistol concealed.

The shooting took place in a crowded dance hall. While the victim testified that the defendant shot him with a pistol (aggravated assault) which he pulled from his shirt (concealed weapon), the jury, under all the facts and circumstances and the testimony of other witnesses could believe the victim in whole or in part. That is their prerogative. Adams v. Adams, 218 Ga. 67 (4) (126 SE2d 769); Powell v. Blackstock, 64 Ga. App. 442 (5) (13 SE2d 503). There was evidence that the defendant’s shirttail was tucked in. There was contradictory evidence that his shirttail was out. The jury, thus, could have found that the state failed to carry the burden of proving beyond a reasonable doubt that the defendant was carrying a concealed pistol. At the same time there was sufficient evidence from which the jury was authorized to find, as they did, that he committed aggravated assault with a pistol. A .22 caliber pistol was found on the floor following the shooting. The victim was shot with a .22 caliber pistol. The weapon found on the floor was never identified as the one from which the shot was fired or the gun the defendant had in his hand when he committed the aggravated assault. There is a strong inference that the pistol found on the floor was the weapon used by the defendant. There is also other circumstantial evidence going to this fact and some direct. The victim himself testified that he saw the pistol in the defendant’s hand and that he was shot with it. The state must prove the defendant’s guilt; the accused does not have to prove his innocence.

There simply was no evidence as to whether or not the defendant had or did not have a license to carry a pistol. The absence of sufficient proof to satisfy the jury of the defendant’s guilt of carrying an unlicensed pistol and carrying a concealed pistol, does not carry with it the conclusion that the defendant could not have committed the aggravated assault with a pistol. The jury simply found that it could not determine beyond a reasonable doubt whether the pistol used in the assault was concealed, or unconcealed, licensed, or unlicensed, prior to the assault itself.

Submitted January 4, 1973 Decided June 18, 1973 Glenn Zell, for appellant. Lewis R. Slaton, District Attorney, Morris H. Rosenberg, Joel M. Feldman, Carter Goode, Isaac Jenrette, for appellee.

The evidence must be construed most strongly in favor of the verdict that was rendered, with the approval of the trial court. See Wren v. State, 57 Ga. App. 641, 644 (196 SE 146); Ryder v. State, 121 Ga. App. 796 (3) (175 SE2d 882).

Judgment affirmed.

Bell, C. J., Eberhardt, P. J., Pannell, Quillian, Clark and Stolz, JJ, concur. Deen, J., concurs specially. Hall, P. J., dissents.