Opinion
45722.
SUBMITTED OCTOBER 6, 1970.
DECIDED NOVEMBER 24, 1970.
Assault with intent to murder. Wilkes Superior Court. Before Judge Stevens.
Lawson E. Thompson, for appellant.
Kenneth E. Goolsby, District Attorney, for appellee.
The defendant was convicted and sentenced for assault with intent to murder under the provisions of former Code § 26-1403. The conviction and sentence is based on a stabbing incident which occurred on January 21, 1968, and the fact that the defendant stabbed the victim is not only undisputed, but the defendant admitted the fact in his unsworn statement to the jury. He appeals following the overruling of his motion for new trial.
1. The trial judge in effect limited his instructions on the lesser misdemeanor offense of stabbing to a definition of circumstances where, if death had ensued, the defendant would be guilty of voluntary manslaughter as defined under former Code §§ 26-1006, 26-1007, but not murder under former Code § 26-1002. This is error which requires the grant of a new trial. Burris v. State, 2 Ga. App. 418 (2) ( 58 S.E. 545).
In the above cited case the learned Judge Powell clearly delineated the elements of the offense to distinguish it from the offense of assault with intent to murder, or no offense at all, so as to provide the essential guidelines to frame appropriate instructions in the event of another trial. Also, see Clark v. State, 88 Ga. App. 860 ( 78 S.E.2d 260).
2. The remaining enumerations involve matter unlikely to recur in the event of another trial and thus do not require any specific ruling. See Code Ann. § 6-701(b). The necessity for and content of instructions on mutual combat may be determined by reference to former Code Ann. § 26-1014, catchwords "Mutual combat." Appropriate instructions on the misdemeanor offense of stabbing as a lesser included offense of assault with intent to murder would, in our opinion, in view of the undisputed act of stabbing as the only evidence of a battery, exclude the necessity for instructions on the comparable, but more generalized, misdemeanor offense of assault and battery. See Ward v. State, 56 Ga. 408.
Judgment reversed. Eberhardt and Pannell, JJ., concur.