22 Ga. App. 97 | Ga. Ct. App. | 1918
As we view this case, the only question that it is necessary to determine is whether the judge erred in eliminating from the consideration of the jury the question of their discretion “to find a verdict in said ucase for the offense of assault and battery.” The evidence shows that three men were traveling
Jim Tanner, one of the three men traveling in the buggy with the defendant, swore: “I was there the day William; Moore was struck. We came up there through the yard. Culpepper called the old darkey up, and he come out and Homer hit him,—hit him with an old mattock. The negro was not doing- anything. I was sitting in the buggy. Mr. Culpepper was doing the talking—Gar
'We think the judge should have allowed the jury the discretion of saying whether or not this defendant was guilty of assault and battery; for it.is a well-settled proposition in .this State that “the specific intent to kill is an essential ingredient of the offense of assault with intent to murder,” and before there can be a legal conviction for assault with intent to murder this specific intent to 'kill must be shown. In Patterson v. State, 85 Ga. 131, 133 (11 S. E. 620), Mr. Justice Blandford said:. “From the use of a deadly weapon in a manner calculated to injure, the law will presume-an intention to injure; or from the use of it with an intention to kill, in a manner calculated to accomplish the intention, the law will presume that, had the killing taken place, the homicide would have been murder. But this is as far as the mere legal presumption as to malice or intent will go, on trials for assault with intent to murder. That an effect not produced, and which if produced would have constituted a different’ offense from that actually committed, was intended, is surely for determination by the jury as .a matter of fact. The law, without the aid of1 the jury, can presume the malicious motive, or the intention so far as realized in the act, but not an intention beyond what was so realized.” In Adams v. State, 125 Ga. 11 (53 S. E. 804),
It was perhaps because of the decisions in such eases as Kendrick v. State, 113 Ga. 759 (39 S. E. 286), Tyre v. State, 112 Ga. 224 (37 S. E. 374), and Lanier v. State, 106 Ga. 368 (32 S. E. 335), that the learned trial judge in this case did not submit to the jury the question as to assault and battery. In the Kendrich case, supra, the headnote is as follows: “When on the trial of an indictment for assault with intent to murder, alleged to have been committed by shooting with a pistol, the evidence for the State, if credible, unequivocally demanded a general verdict of guilty, and this evidence was met only by a statement of the accused which, if true, established an alibi, a verdict finding the accused guilty of the .statutory offense of unlawfully shooting at another was unwarranted; there being, under such circumstances, no evidence whatever upon which to base the same.” Following the above headnote and on the same page the report shows the following conduct of the defendant: “The evidence showed that he went, at night, to a house where his wife, who was living separate from him, was staying, broke a door and a window, threw brickbats and fired pistol-shots into the house, and, after exchanging shots with'Zena Dixon and perhaps being wounded, and as she was returning into the house from the yard or steps, he arose, said he was going to hill her [italics ours], and fired more shots 'toward her.” "In the Tyre ease, supra, the first headnote is as follows: “The law relating to the statutory offense of ishooting at another’ was not involved in a trial for assault with intent to murder,
In each of the above cases it will be seen that while the defendant used repeatedly the weapon he had in hand, yet the jury were not left to draw inferences from the testimony alone as to the intent to kill, but in each case there was in proof a specific declaration of the defendant’s intention to kill the person assaulted. Such is not the fact in the instant case. While the record shows an unprovoked assault, it shows only one lick was struck, and the character of that wound can not be definitely determined from the evidence. The defendant was not so seriously injured as to prevent him from walking a considerable distance soon after the occurrence. The prosecutor had just been told by one of the three men that he “would give kim until night to get away,” and the defendant then said that he “would not give him -that long,” and then struck the blow and dropped the mattock
In Fallon v. State, 5 Ga. App. 659, judge Powell said: “If death results from a defendant’s intentionally shooting'at the deceased with an ordinary pistol in a manner ordinarily likely to kill) the defendant’s intention to kill is not issuable. The law presumes that he intended to kill, and not to inflict some lesser injury. But if death does not ensue, the law does not presume that the defendant intended to'kill, though he shot with a weapon likely to produce death and in a manner ordinarily likely to produce that result;"for in cases o'f assault with intent to murder, the burden of proving that the defendant was possessed of a specific intention 'to kill is always ppon the State, unaided by any presumption of
.Owing to the fact that the case must be tried over a discussion •of the other alleged errors would be useless.
Judgment reversed.