Upshaw v. State

Beasley, Chief Judge.

An indictment charged that Upshaw “did unlawfully make an assault upon the person of Randy Phillips by shooting him with a certain gun, an instrument which when used offensively against a person is likely to result in serious bodily injury” (OCGA § 16-5-21).

At trial, Phillips testified as follows. Upshaw and Harris appeared at his house. Upshaw had a pistol, which Phillips attempted to take away. During the struggle, Upshaw shot Phillips once and attempted to shoot him again in the head, but the gun did not discharge. According to Phillips, Harris did not become involved…