83 Ga. 378 | Ga. | 1889
The indictment had but a single count. It charged the offence of assault with intent to murder, by cutting and stabbing with a razor, or other sharp instrument to the jurors unknown. The verdict was, “ We, the jury, find the defendant guilty of stabbing.” Should the motion in arrest of judgment have been sustained ?
Section 4369 of the code reads as follows : “ Any person who shall be guilty of the act of stabbing another, except in his own defence or other circumstances of justification, with a swoi’d, dirk or knife, or other instrument of the like kind, shall, on conviction, be
Had the indictment charged the offence of stabbing only, it should by its terms have negatived the exception in the statute; that is, it should have alleged that the act of stabbing was not done by the' accused “ in his own defence of other circumstances of justification.” Elkins v. The State, 13 Ga. 435. Hut as the offence charged was assault with intent to murder by stabbing, the exception was impliedly negatived by other terms found in the indictment, to wit, “ with intent then and there unlawfully, feloniously and with malice aforethought, to kill and murdef.” Arnold v. The State, 51 Ga. 144. It follows that the kind of stabbing alleged in the indictment was criminal stabbing; and as verdicts áre to have a reasonable intendment, and are not to be set aside unless from necesssity (code, §3561), the verdict should be construed as finding a criminal stabbing; that is, such as the indictment alleges; the meaning of the jury being that the offence committed, by reason of the intent to murder being absent, was not the major offence charged, but the minor offence included within it. The verdict is not in any sense a special verdict, but a general one finding the accused guilty of this minor offence. The distinction between a special verdict and a partial verdict will be seen by reference to 1 Bish. Crim. Proced., §§1006, 1009. A special verdict sets out the facts and leaves it to the court to form the conclusion of law. See McGuffie v. The State, 17 Ga. 498. A par