Bard v. State

55 Ga. 319

Opinion

Jackson, Judge.

This was an indictment for an assault with intent to murder. The indictment charged that the defendant, John Bard, “with force and arms, and a knife, a weapon likely to produce death, in and upon one William A. Spencer, in the peace of the state, did make an assault with intent unlawfully to kill the said Spencer with malice aforethought, the said Bard then and there being a person of sound memory and discretion, and with said knife the said Bard did then and there unlawfully cut, stab and wound the said Spencer.” The jury returned a verdict for an assault, and the defendant moved to arrest the judgment on the ground that the assault was not charged with sufficient certainty, and particularly that the assault was not charged to have been unlawfully done.

1. We think that if the indictment had closed with the words “did make an assault,” it would have been a full description of that offense, under- our Code. It was not necessary to aver that the' assault was unlawful. But when the assault with intent to murder was so charged in the indictment as to have supported a verdict for that offense, had one been rendered, it is too well settled to admit of doubt that the verdict for the lesser offense of an assault will be sustained ; and when the indictment further charges an unlawful cutting, stabbing and wounding with a knife, it makes that which was as clear as a sunbeam before still clearer, if it be possible.

2. If it be necessary to charge that the assault was'unlawful, taking all the indictment together, it does charge it with certainty. The verdict of stabbing, of assault and battery, or of assault, either of them might have been rendered and would have been sustained by this indictment, and the motion to arrest the judgment was properly overruled, and the judgment below is affirmed.

Judgment affirmed.