121 Ga. App. 677 | Ga. Ct. App. | 1970
Lead Opinion
The evidence shows that the defendant beat his victim about the head and face with a wooden hammer, hitting him on the ear, the cheek, and arm; the hammer was one used “to beat out car tops with.” The assault was on August 2, 1969, and on the date of trial, which was on August 28, 1969, the victim was still suffering from the effects of the battery. His eye and his ear were both affected. Several days after the beating there.was a big blue place on his ear and elsewhere on his face or nose. The victim testified that when
Sheriff Ridley was called as a witness for the State and testified that he saw the victim on August 2, 1969, and he had visible marks on his face and on his- eyes; that they were “blue” with cuts and bruises, and there was swelling of the face, and right along about his eye there was “some knot.”
This evidence amply supports a verdict of guilty of assault with intent to murder. There was no burden on the State to show that the intent to kill the victim lasted any specific length of time. His use of a weapon that was likely to produce death, and then striking blows that could have produced death, was sufficient. Simply because he walked away without accomplishing the act is not enough to acquit the defendant because the very nature of the indictment, “Assault with intent to kill” implies that death did not take place; else the defendant would have been indicted for murder, and not for assault with intent to murder. No doubt remorse or fear of punishment affects the wrongdoer many times, and prevents his accomplishing his purpose. The intent is a question for the jury to determine, as has been done in this case, and such intent may be inferred
In the case at bar there was no evidence of justification but, to the contrary, the defendant testified: “Did you ever strike him with that hammer or with your fist or any other way? A. I ain’t never seen that hammer before and I ain’t never drawed my fist back at him by no means.” The evidence amply supports the verdict of guilty.
Judgment affirmed.
Dissenting Opinion
dissenting. Intent to kill is not presumed where death does not ensue from the beating. Hawks v. State, 51 Ga. App. 317 (180 SE 363). It must be established by evidence sufficient to exclude every reasonable hypothesis save that the injury was caused by specific intent to kill, which may be shown by the reckless and wanton disregard of human life. Mundy v. State, 59 Ga. App. 509 (1 SE2d 605); Messer v. State, 120 Ga. App. 747 (172 SE2d 194). To show intent sufficient to support conviction one must show both that the weapon was one likely to produce death and that it was used in a manner likely to produce death (Nelson v. State, 4 Ga. App. 223 (60 SE 1072)), although the burden may also be carried by proof of other facts and circumstances. Finch v. State, 98 Ga. App. 480 (106 SE2d 86); Monday v. State, 32 Ga. 672 (79 AD 314).
I am authorized to state that Presiding Judge Hall and Judges Quillian and Whitman concur in this dissent.