43 Ga. App. 339 | Ga. Ct. App. | 1931
1. “Where a defendant is on trial for assault with intent to murder, the intention to kill must be proved, and is a question of fact, the determination of which is the exclusive province of the jury. To charge the jury in such a case that if they believe defendant committed an assault as charged in the bill of indictment, and that the offense would have been murder if death had resulted as a consequence, then the jury would be authorized to find the defendant guilty of the offense of assault with intent to murder is reversible error.” Duncan v. State, 1 Ga. App. 118 (58 S. E. 248) ; McAllister v. State, 7 Ga. App. 541 (6) (67 S. E. 221).
2. In the instant case the defendant was convicted of an assault with intent to murder, but the evidence, while supporting the verdict, would have also authorized a verdict for assault and battery. The judge in his charge correctly instructed the jury upon the abstract law of murder and of an assault with intent to murder; but subsequently in the charge, when he applied the abstract law to the facts of the ease, he charged as follows: “If you believe, from the facts and circumstances of this case and the evidence, that this defendant is the- party who inflicted the alleged blow upon the prosecutor, Curtis Ilyal, in this case,
Judgment reversed,.