49 Ga. App. 376 | Ga. Ct. App. | 1934
The defendant, Willie Dixon, was convicted of the offense of assault with intent to murder. Only the general grounds of the motion for a new trial are urged. It is contended in the brief that the evidence fails to show a specific intent to kill, and that, having alleged in the indictment that the weapon used, — a pistol, —was a weapon likely to produce death, and the evidence failing to substantiate this allegation, no witness having sworn that it was such a weapon and the pistol itself not being introduced in evidence, the verdict is not supported b}’’ the evidence and a new trial is demanded. The State produced evidence at the trial that was amply sufficient for the jury to determine that a specific intent to kill was shown. The evidence disclosed that the defendant, after having told the prosecutor that he would kill him, shot him with a pistol. The ball went through the prosecutor’s forearm and entered and lodged in the small of his back. No witness swore that the pistol was a weapon likely to produce death, nor was the pistol introduced in evidence. It becomes pertinent to inquire what evidence is necessary to show that the weapon used is a weapon of the character charged in the indictment, this fact being an essential element of the State’s case. In Paschal v. State, 125 Ga. 279 (54 S. E. 172), it was said: “Hnder the indictment it was necessary to prove that the knife with which the assault was made was a weapon likely to produce death. This allegation might have been established by direct proof as to the character of the weapon, by an exhibition of it to the jury, or by evidence as to the nature of the wound, or other evidence such as would warrant the jury to find the inslru
Judgment affirmed.