60 Ga. App. 195 | Ga. Ct. App. | 1939
1. In a trial for assault with intent to murder, the question of intent is for the jury. Gilbert v. State, 90 Ga. 691 (16 S. E. 652); Walton v. State, 114 Ga. 112 (39 S. E. 877); Hunter v. State, 10 Ga. App. 831 (74 S. E. 553); Wimberly v. State, 12 Ga. App. 540 (77 S. E. 879); Chandler v. State, 54 Ga. App. 334 (4) (187 S. E. 856). While to authorize a conviction for assault with intent to murder a deliberate intent to kill must be shown at the time of the assault, such intent may be inferred by the jury from the “nature of the instrument used in making the assault, the manner of its use, and the nature of the wounds inflicted, as well as the brutality and duration of the assault.” Howard v. State, 2 Ga. App. 830 (2) (59 S. E. 89); Nelson v. State, 4 Ga. App. 223 (60 S. E. 1072); Chandler v. State, 54 Ga. App. 334 (4) (187 S. E. 856). The evidence in the instant case was sufficient to authorize the jury to believe that the stick used was an instrument likely to produce death, and that, from the manner and brutality of its use and the nature and duration of the injuries inflicted, the defendant assaulted the prosecutor with intent to kill.
2. Where a motion for new trial is predicated in part on alleged newly discovered evidence, before an assignment of error to the judgment overruling the motion relatively thereto may be considered, it must affirmatively appear that the movant and his counsel exercised due diligence, before the trial, to discover such evidence, and that by the
3. The evidence authorized the verdict, and the court did not err in overruling the motion for new trial.
Judgment affirmed.