104 Ga. 497 | Ga. | 1898
Mathews was found guilty of an assault with intent to murder, the indictment charging that the assault was made with an instrument to the grand jurors unknown, “ the same being a weapon likely to produce death.” He moved for a new trial, on the grounds that the verdict was contrary to law and the evidence and without evidence to support it. This motion was overruled, and he excepted. It being the province of the jury to pass upon questions of fact and to determine the truth when the evidence is conflicting, this court will not disturb their finding, which was approved by the trial judge, if there is any evidence to support it. The
In the case of Paschal v. State, it was held that “Where an indictment charged the commission of an assault with intent to commit murder by using a weapon likely to produce death, the proof must show that such was the character of the weapon. This may be done by producing the instrument itself, or showing the effect of it, or other satisfactory evidence, but must be done in some way.” 68 Ga. 818, and cases cited. An,examination of the Paschal case, and a comparison of that case with the present, will show that the evidence in this case is even weaker than in that. In this case we must hold, as the court did in that, that the evidence was not sufficient to warrant the conclusion, beyond a reasonable doubt, that the alleged assault was committed with a weapon likely to produce death. An assault with intent to murder may be committed without the use of any wéapon, but in such case the evidence must show an
Judgment reversed.