114 Ga. App. 580 | Ga. Ct. App. | 1966
The defendant appeals from his conviction and sentence of five years upon an indictment for assault with intent to murder “with a certain pistol and blunt instrument . . . being a weapon likely to produce death.” The evidence was sufficient to support a finding that the defendant hit the victim on the head with a pistol inflicting a severe wound, and to support a finding that the defendant acted with the intent to kill. Turner v. State, 57 Ga. 107; Kennedy v. State, 68 Ga. App. 852, 856 (24 SE2d 321); Benford v. State, 73 Ga. App. 426 (36 SE2d 833); Thomas v. State, 75 Ga. App. 334 (43 SE2d 352); Tanner v. State, 86 Ga. App. 767 (72 SE2d 549); Finch v. State, 98 Ga. App. 480 (106 SE2d 86).
On this trial there was no evidence of mutual combat between the defendant and the victim. The defendant enumerates as error that the court in instructing the jury on the law embodied in Code §§ 26-1011 and 26-1012 (justifiable homicide) intermingled certain provisions of Code § 26-1014. It has been held error to charge Code § 26-1014 when mutual combat is not involved (Dye v. State, 218 Ga. 330, 332 (127 SE2d 674); Price v. State, 108 Ga. App. 581, 586 (133 SE2d 916)), as well as to commingle in instructions to the jury the law embodied in Code §§ 26-1011, 26-1012 and 26-1014; McKibben v. State, 88 Ga. App. 466, 472 (77 SE2d 86). For this reason the judgment must be reversed.
Since the case will be retried under the Appellate Practice Act of 1965 as amended (Ga. L. 1965, p. 18, as amended Ga. L. 1966, pp. 493, 498), it is not necessary that we pass on the other enumerations of error on instructions and omissions of instructions to the jury.
Judgment reversed.
