Young v. State

82 Ga. 752 | Ga. | 1889

Simmons, Justice.

1. McRae and Young were tried and convicted of assault with intent to murder. The main grounds argued by the counsel for the plaintiffs in error, for reversal of the judgment of the trial court in refusing to grant the motion for a new trial, were the 3d and 4th grounds, of the motion, which are as follows :

(3) Error in refusing to give in charge to the jury the following request of counsel for the defendants: “ If the defendants, or either of them charged with intent to murder, could have done the murder, and yet did not do it,. and nothing prevented him or them and they desisted of their own accord, then the true theory of the law is that the acts are not assault with intent to commit murder, but are assault and battery.” This request the court gave, but with the following qualification : “ Unless the acts committed prior to desisting amount to assault with intent to murder.” The refusal to give the charge as requested, without qualification, and the qualifying of the same as above stated, is alleged to be error.

(4) Error in refusing to charge the jury as requested, without qualification: “ If the defendants, or either of them, began the difficulty with the intention of murdering either of the parties named in the bill of indictment, and after pursuing that intent to any point short of consummation of that intent, and then by agreement or other reason repented and desisted from the accomplishment of the act of murder, then he is not guilty of the assault with intent to commit murder.” And error in qualifying this request as -follows : “ Unless the acts already committed before desisting amount to assault with intent to commit murder.”

We think the court was right in qualifying the request to charge as he did. When a man has an intent to commit a certain crime, and does an act concurrent with the intent sufficient to constitute a lesser crime of the same nature, and repents or desists from his first intention, he is still indictable for the lesser offence. “ If however, he abandons his evil intention at any time before so much of the act is done as constitutes a crime, such abandonment takes from what has been done its indictable quality.” Stephens vs. The State, 107 Ind. 189; 1 Bish. Crim. Law, §§208(a), 733, 766; Am. & Eng. Encyc. of L. 677.

2. The nest ground insisted on by counsel for the plaintiff in error was, that the verdict was contrary to the evidence. We have read the evidence carefully, and we affirm the judgment of the trial judge very reluctantly. It seems to us that the evidence is rather weak to sustain the charge of assault with intent to murder, but that it makes out a case of aggravated assault and battery. But as the jury found the defendants guilty, and the judge who tried the case was satisfied with their verdict, we conform to the uniform rulings of this court and will not disturb their finding on this ground.

Judgment affirmed.