21377 | Ga. Ct. App. | May 13, 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" court="Ga. Ct. App." date_filed="1907-01-31" href="https://app.midpage.ai/document/duncan-v-state-5602184?utm_source=webapp" opinion_id="5602184">58 S. E. 248) ; McAllister v. State, 7 Ga. App. 541 (6) (67 S.E. 221" court="Ga. Ct. App." date_filed="1910-03-11" href="https://app.midpage.ai/document/mcallister-v-state-5604188?utm_source=webapp" opinion_id="5604188">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,.