Anderson v. State

179 S.E. 654, 51 Ga. App. 98, 1935 Ga. App. LEXIS 578

• Court: Court of Appeals of Georgia
• Decided: April 8, 1935
• Docket: 24702
• Status: Published

Opinion

Guerry, J.

1. To constitute the offense of assault with intent to murder, there must be an assault by one person upon another, with a weapon likely to produce death in the manner in which it is used, the assault must be actuated by malice, either express or implied, and made with the specific intent to kill the person assaulted. Reddick v. State, 11 Ga. App. 150 (74 S. E. 901).

2. The indictment charged the defendant with the offense of assault with intent to murder by the use of a knife “and other sharp instrument, . . the same being a weapon likely to produce death.” The evidence for the State showed that the defendant, without justification, assaulted Berry, the prosecutor, with “a long Swiss blade knife,” with a blade approximately four inches long, and cut him from his neck down his chest, over his heart and across his jugular vein. The knife was not introduced in evidence. Held: '“Under the indictment it was necessary to prove that the knife with which the assault was made was a weapon likely to produce death. This allegation might have been established by direct proof as to the character of the weapon, 'by an' exhibition of it to the jury, or by evidence as to the nature of the wound, or other evidence such as would warrant the jury to find the instrument was one calculated to produce death.” Paschal v. State, 125 Ga. 279 (54 S. E. 172). See also Dixon v. State, 49 Ga. App. 376 (175 S. E. 603), and cit. The jury were amply authorized to find that the knife used and described was one calculated to produce death.

3. The evidence amply supported the verdict.

Judgment affirmed.

Broyles, O. J., and MacIntyre, J., concur. Brooks Culpepper, B. D. Dubberly, for plaintiff in error. A. J. Perryman, solicitor-general, contra.