36 Ga. App. 288 | Ga. Ct. App. | 1927
T. O. Martin was convicted of assault with intent to murder. The gist of the evidence follows: The meeting of the defendant and A. L. Tuggle, the prosecutor, at the home of W. D. Anderson, an acquaintance, was entirely accidental. Martin arrived a short while before Tuggle, and was talking to Anderson on the latter’s porch when Tuggle drove up to Anderson’s house. When Martin saw Tuggle he said, “Yonder is the man who broke up my home, I will go out to see him.” Anderson told Martin to go home, and he said he would, and that he was going to his automobile. Martin had an open knife in his hand when he left the porch. Tuggle had gotten out of his automobile and was standing by Zach Anderson’s car,- which was between Martin and his automobile, with his back to Martin. As Martin approached he said, “Good-bye, Mr. Anderson.” Tuggle, who was standing with one foot on the running-board of Anderson’s car, said to Martin, “How do you do ?” Tuggle made no movement towards Martin, did not leave the side of the car, and had no weapon in his hand. He was smiling. Then “his face went set, and he run his hand down in his pocket, and Martin flashed by.” Tuggle had no time to get anything. He straightened up and Martin cut him. In the struggle which followed, Tuggle caught Martin’s knife hand and fell on top'of him. Others interfered, the knife was taken from Martin, and W. D. Anderson took Tuggle to the doctor in his automobile. A year prior to^ the difficulty Martin threatened Tuggle, and the latter had been told of it and advised to keep away from Martin. Tuggle swore that he looked back, saw Martin within six
The evidence warranted the jury in concluding that the knife in question was a deadly weapon and that the intent to kill was shown. The evidence sustains the verdict, and there is no merit in the general grounds of the motion for new trial.
The first ground of the amendment to the motion for a new trial is that the court failed to charge that “intent to kill will not be presumed from an attack with a deadly weapon, where death has not ensued; and on the trial of a person charged with assault with intent to murder the burden is upon the State to prove beyond a reasonable doubt that the alleged assault, if made, was made with the specific intent to kill.” That this criticism is not meritorious clearly appears from the following excerpt from the court’s instructions to the jury: “Now, I stated to you just now, and I will repeat it, in order to convict the defendant of assault with intent to murder in this.case, you would have to believe by the
The third ground of the amendment to the motion for a new trial really contains two grounds. The first alleges error in the following charge: “But the court charges you that if one person cuts another, and claims to cut him in self-defence, the danger must be so urgent and pressing at the time of the cutting, or it must appear that the danger was so urgent and pressing at the time, that it was necessary for the person to cut the other person.” This excerpt is said to be error (1) because it deprived defendant of his sole defense that he acted under the fears of a reasonable man, and (2) because neither mutual combat nor manslaughter was involved in the case. “The doctrine of reasonable fear does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.” Tolbirl v. State, 124 Ga. 767 (4) (53 S. E. 327); Jackson v. State, 91 Ga. 271 (1) (18 S. E. 298, 44 Am. St. R. 22). “A bare fear of injury can never be regarded as sufficient to justify a homicide.” Williams v. State, 120 Ga. 873 (48 S. E. 370). See also Elrod v. State, 27 Ga. App. 265 (1) (108 S. E. 67). The foregoing excerpt applies this principle to the case at bar, and is not objectionable for any reason assigned. Newman v. State, 60 Ga. 610 (1).
The second portion of this ground complains that the court charged that “under the laws of this State, if any person cuts another just under a bare fear that the other person is about to commit a serious personal injury upon him, why, he would not be jus
The last ground of the motion for a new trial, being but an elaboration of the general grounds, is controlled by our previous ruling that the evidence was sufficient to support the verdict.
Judgment affirmed.