Opinion
31963.
DECIDED APRIL 23, 1948.
Stabbing; from Laurens Superior Court — Judge Camp. January 2, 1948.
J. A. Merritt, for plaintiff in error.
W. W. Larsen, Solicitor-General, contra.
1. Although the evidence might have authorized a different verdict, where there was enough to support the verdict found, the judgment of the trial court refusing a new trial on the general grounds will not be disturbed. See Code (Ann.) § 70-202, and cases annotated under catchwords, "Any evidence" and "Approval."
DECIDED APRIL 23, 1948.
James Davis was indicted in the Superior Court of Laurens County, at the October term, 1947, for assault with intent to murder.
Construing the evidence in its most favorable light to uphold the verdict, the jury trying the case was authorized to find facts substantially as follows: On July 19, 1947, the defendant was in Dublin, and Iverson Glover, the victim, was in town on that day and saw the defendant near the Checker Board Store. Upon seeing each other a conversation ensued between the two, which resulted in the defendant stabbing the victim in the back with a knife. Thereupon the two became locked together in a struggle and fell to the ground with the victim on top of the defendant. The defendant stabbed the victim several times while they were in this position, and continued to stab him until George Hines pulled the victim of the defendant. The circumstances surrounding the stabbing were such as to authorize the jury to find that the same was not done with the specific intent to kill. The jury would also have been authorized to have found that had death resulted, the defendant would have been guilty of manslaughter. Several defense witnesses were used and their testimony would have authorized a verdict in favor of the defendant on the grounds of self-defense. The defendant's statement would have authorized a verdict in his favor. A number of witnesses were introduced as to his good character.
The jury returned a verdict of guilty of the misdemeanor offense of stabbing, and the defendant was sentenced accordingly. He filed a motion for a new trial on the general grounds only. The same was overruled and his exception is to that judgment.
Counsel for the defendant contends that the defendant was either guilty of the offense of assault with intent to murder or was not guilty of any offense, and that therefore the verdict of guilty of stabbing is unauthorized. In Lewis v. State, 14 Ga. App. 503, 504 ( 81 S.E. 378), the following is held: "To constitute the offense of assault with intent to murder, there must be a specific intent to kill. This intent is not necessarily or conclusively shown by the use of a weapon likely to produce death. The jury should have been given the discretion, under proper instruction from the court, to convict of a lesser offense included in the higher felony charged, if they believed that the evidence failed to show a specific intent to kill. The failure so to instruct the jury was error. See Powell v. State, 7 Ga. App. 744 ( 67 S.E. 1048); Ripley v. State, 7 Ga. App. 679 ( 67 S.E. 834); Fallon v. State, 5 Ga. App. 659 ( 63 S.E. 806), and cases therein cited." Therefore it necessarily follows that, where the jury is authorized to find that the stabbing is without justification and at the same time done without the specific intent to kill, or under such circumstances that had death resulted the defendant would have been guilty of manslaughter, the same constitutes the statutory offense of stabbing, and it is error for the trial court to fail to submit to the jury this lesser offense. In the instant case, the jury was authorized to find the stabbing to have been without justification. It was also authorized to find that the same was done without the specific intent to kill, or that had death resulted the defendant would have been guilty of manslaughter. The trial court, therefore, properly submitted to the jury the lesser offense of stabbing, and the verdict of the jury finding the defendant guilty of this offense is amply supported by the evidence.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.