Watkins v. State

Court of Appeals of Georgia

Watkins v. State

225 S.E.2d 739, 138 Ga. App. 160, 1976 Ga. App. LEXIS 2092

CourtCourt of Appeals of Georgia

DecidedMarch 18, 1976

Docket51794

StatusPublished

Cited by2 cases

This text of 225 S.E.2d 739 (Watkins v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Watkins v. State, 225 S.E.2d 739, 138 Ga. App. 160, 1976 Ga. App. LEXIS 2092 (Ga. Ct. App. 1976).

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Opinions

Marshall, Judge.

This is an appeal from a conviction of aggravated assault by shooting a man with a 12-gauge shotgun and a sentence to five years in the penitentiary. Appellant enumerates as error the denial of his motion for a new trial. The bases of that motion were: (1) that verdict and judgment were against the weight of the evidence; (2) the sentence imposed under the circumstances of this case amounted to cruel and unusual punishment; (3) venue was not proven; and, (4) the court’s charge on self-defense was insufficient. Held:

1. Appellant has neither briefed, argued, nor given any citation of authority in support of Enumerations 1, 3 and 4. Accordingly, pursuant to Rule 18 (c) (2), Rules of the Court of Appeals of the State of Georgia, each of the enumerations is deemed to have been abandoned. Moreover, our examination of the record indicates each to be without merit.

2. In the second enumeration of error, appellant [161]*161complains the sentence imposed by the jury amounts to cruel and unusual punishment. The jury heard evidence that the appellant was a 74-year-old diabetic, with one leg amputated who had a chronically ill wife totally dependent upon him. The jury also heard evidence that this same appellant had twice before been convicted of crimes involving the shooting of or shooting at others.

Submitted March 1, 1976 Decided March 18, 1976. Hill, Jones & Farrington, Bobby L. Hill, George P. Shingler, for appellant. Andrew J. Ryan, Jr., District Attorney, Michael Gardner, Assistant District Attorney, for appellee.

The classical rule for testing for cruel and unusual punishment is stated to be: "[s]o long as they [the General Assembly] do not provide cruel and unusual punishment, such as disgraced the civilization of former ages, and make one shudder with horror to read of them, as drawing, quartering, burning, etc., the Constitution does not put any limit upon legislative discretion.” Whitten v. State, 47 Ga. 297, 301.

Imposition of five years imprisonment for aggravated assault arising out of appellant’s act of shooting an unarmed and nonthreatening victim with a 12-gauge shotgun is within the statutory limits authorized for aggravated assault with a deadly weapon. Such a sentence neither constitutes cruel and unusual punishment nor is it excessive so as to require this court to examine its propriety or to set it aside. Goughf v. State, 232 Ga. 178 (205 SE2d 844); Dixon v. State, 231 Ga. 33 (200 SE2d 138); Evans v. State, 228 Ga. 867 (188 SE2d 861); Dutton v. Smart, 222 Ga. 35 (148 SE2d 396); Baker v. State, 131 Ga. App. 510 (206 SE2d 111); Clements v. State, 128 Ga. App. 162 (196 SE2d 317); Bearden v. State, 122 Ga. App. 25 (176 SE2d 243).

Judgment affirmed.

Pannell, P. J., concurs. Evans, J., concurs specially.

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Marshall, Judge.

This is an appeal from a conviction of aggravated assault by shooting a man with a 12-gauge shotgun and a sentence to five years in the penitentiary. Appellant enumerates as error the denial of his motion for a new trial. The bases of that motion were: (1) that verdict and judgment were against the weight of the evidence; (2) the sentence imposed under the circumstances of this case amounted to cruel and unusual punishment; (3) venue was not proven; and, (4) the court’s charge on self-defense was insufficient. Held:

1. Appellant has neither briefed, argued, nor given any citation of authority in support of Enumerations 1, 3 and 4. Accordingly, pursuant to Rule 18 (c) (2), Rules of the Court of Appeals of the State of Georgia, each of the enumerations is deemed to have been abandoned. Moreover, our examination of the record indicates each to be without merit.

2. In the second enumeration of error, appellant [161]*161complains the sentence imposed by the jury amounts to cruel and unusual punishment. The jury heard evidence that the appellant was a 74-year-old diabetic, with one leg amputated who had a chronically ill wife totally dependent upon him. The jury also heard evidence that this same appellant had twice before been convicted of crimes involving the shooting of or shooting at others.

Submitted March 1, 1976 Decided March 18, 1976. Hill, Jones & Farrington, Bobby L. Hill, George P. Shingler, for appellant. Andrew J. Ryan, Jr., District Attorney, Michael Gardner, Assistant District Attorney, for appellee.

The classical rule for testing for cruel and unusual punishment is stated to be: "[s]o long as they [the General Assembly] do not provide cruel and unusual punishment, such as disgraced the civilization of former ages, and make one shudder with horror to read of them, as drawing, quartering, burning, etc., the Constitution does not put any limit upon legislative discretion.” Whitten v. State, 47 Ga. 297, 301.

Imposition of five years imprisonment for aggravated assault arising out of appellant’s act of shooting an unarmed and nonthreatening victim with a 12-gauge shotgun is within the statutory limits authorized for aggravated assault with a deadly weapon. Such a sentence neither constitutes cruel and unusual punishment nor is it excessive so as to require this court to examine its propriety or to set it aside. Goughf v. State, 232 Ga. 178 (205 SE2d 844); Dixon v. State, 231 Ga. 33 (200 SE2d 138); Evans v. State, 228 Ga. 867 (188 SE2d 861); Dutton v. Smart, 222 Ga. 35 (148 SE2d 396); Baker v. State, 131 Ga. App. 510 (206 SE2d 111); Clements v. State, 128 Ga. App. 162 (196 SE2d 317); Bearden v. State, 122 Ga. App. 25 (176 SE2d 243).

Judgment affirmed.

Pannell, P. J., concurs. Evans, J., concurs specially.

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225 S.E.2d 739, 138 Ga. App. 160, 1976 Ga. App. LEXIS 2092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watkins-v-state-gactapp-1976.

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