Bishop v. State

12 S.E. 641, 86 Ga. 329, 1890 Ga. LEXIS 243

• Court: Supreme Court of Georgia
• Decided: December 20, 1890
• Status: Published

Opinion

Blandeord, Justice.

Bishop was indicted and found guilty of an assault upon one Saggus. A motion was made for a new trial upon the usual grounds that the verdict was contrary to law and tlie evidence, and further, because the court erred in refusing to charge, without qualification, the following request: “ If you believe the defendant intended to commit a violent injury on the person of the prosecutor, but afterwards voluntarily desisted from committing said injury, it would be your duty to acquit the defendant.” The error assigned is that the court qualified the request by adding the following, “before doing any act towards carrying out such intention,” which made the charge read: “If you believe the defendant intended to commit a violent injury on the person of the prosecutor, but afterwards voluntarily 'desisted from committing such injury before doing any act towards carrying out such intention, it would be your duty to acquit the defendant.” We ai’e of the opinion that the charge of the court, with the qualification annexed thereto, was correct. A person may commit an assault upon another by attempting to commit a violent injury upon such 'person, and yet, before the commission of the injury or battery, he may desist by reason of the importunities of the person assaulted, or by reason of other facts or circumstances, before the assault has been finished or completed. This, however, would not relieve such person of the charge of assault, if an assault had been committed before he desisted from his purpose of doing another violent injury.

What we have said as to this ground applies equally to the fifth ground of the motion, which is the only other assignment of error. The judgment of the court below in refusing to grant a new trial must therefore be

Affirmed.