Holley v. StateHolley v. State
delivered the opinion of the court.
Some time after nightfall, the deceased went to the house of two women, where apparently he was not welcomed. He soon left, and while he was gone appеllant, who was in the house, stated that he, appellant, was going to kill the deceased if he returned. Later the deceased returned, and while standing on the porch, apрellant came from within the house and struck the deceаsed a heavy blow on the head with an iron fire poker. Thе force of the blow was sufficient to knock the deceased from the porch and to fracture his skull. Within a short time, аnd while the deceased was attempting to rise from the ground, another negro appeared on the scene armed with a shotgun, and although appellant requested thе-other negro not to shoot the deceased, the negro who» *350 had the shotgun nevertheless approachеd within close range and shot the deceased, killing* him instantly. The deceased was making nu hostile demonstration either when struck with the poker or when shot.
Appellant was indicted, tried, and convicted of an assault and battery with intent to kill and murder. Hе has appealed, and assigns as the ground for reversal that his conviction was contrary to the provisions of sеction 794, Code 1930, which reads as follows: “A person shall not be convicted of an assault with intent to commit a crime, or of any other attempt to commit an offense, when it shаll appear that the crime intended or the offensе attempted was perpetrated by such person at the time of such assault or in pursuance of such attemрt. ’ ’
If upon the occasion in question the deceased had received no other injury than the blow on the héad delivered by the appellant and death had resulted there-, frоm, then, under the statute, appellant could not have been prosecuted for an attempt, because the facts would havé shown beyond doubt that appellant would hаve been guilty of murder; guilty of a complete offense rаther than of an attempt to commit the offense. Davis v. State,
Affirmed.