22 S.E.2d 330 | Ga. Ct. App. | 1942
1. The evidence, though conflicting, was sufficient to sustain the verdict.
2. (a) In the trial of one charged with assault with intent to murder it is not error for the court to charge in substance that in a case of assault with intent to murder the burden rests on the State to prove every element of the offense of murder except that death ensued. And in connection therewith it is not erroneous for the court to charge the law of voluntary manslaughter under a heat of passion in order to illustrate the different principles of law applicable to the offense of assault with intent to murder and the lesser offense of stabbing, and to state that if the accused was actuated by passion he should not be convicted of assault with intent to murder. Neither is it error, in such connection, for the court to fail to charge "should you find that had the prosecutor . . died from the assault that it would have been voluntary manslaughter upon the part of the defendant. then and in that event the defendant would not be guilty of assault with intent to murder, but would be guilty of stabbing, . . [if] guilty of any offense."
(b) "It is error to charge the jury, in a case where the defendant has cut the prosecutor with a knife, that the defendant would be guilty of the statutory offense of stabbing if the cutting was done under such circumstances as that it would have been voluntary manslaughter if death had ensued."
1. The evidence, although conflicting, was sufficient to sustain the verdict.
2. Special ground 1 assigns error because the court failed to charge the jury as follows, without request to do so: "Should you find that had the prosecutor, Vanatti, died from the assault that it would have been voluntary manslaughter upon the part of the defendant, then and in that event the defendant would not be guilty of assault with intent to murder, but he would be guilty of stabbing, should you find that he would be guilty of any offense." The judge charged fully the law of assault with intent to murder, voluntary manslaughter, self-defense, and stabbing. Judge John D. Humphries, in his helpful and learned treatise on Instructions to Juries, page 42, in a note states: "It is not necessary to instruct the jury specifically with reference to the law of murder and voluntary manslaughter; but it is necessary that the essentials of an assault with intent to murder should be included in the instructions given. It is necessary, also, that the law applicable to the contentions of the defendant, and the lesser grades of the offense charged, as shooting at another, stabbing, assault and battery, should be given. See Caudle v.State,
Counsel for the plaintiff in error cites, from Jenkins v.State,
3. Ground 9 assigns error on the charge as a whole, on the ground that it was "confusing and misleading and calculated to influence the jury to convict the defendant." The charge was *127 not erroneous for any of the reasons given. The other grounds of the motion are untenable.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.