Bowden v. State

109 S.E. 915, 27 Ga. App. 768, 1921 Ga. App. LEXIS 411

Opinion

Broyles, C. J.

The defendant was convicted of an assault, and the evidence discloses that the only act relied on to sustain the conviction was as follows-: “He called me ‘a damn rascal,’ and picked up two rocks. He held one in each hand. (Here witness illustrated by holding the right hand backward and higher, holding the left hand down in a natural position.) He drew the right hand and arm back as if to throw. I said, ‘ You have the advantage, why don’t you kill me with the rocks?’ He was on one side of a wire fence, and I was on the other side. We were about as far apart as defendant’s counsel and I now are — - about 12 or 14 feet. He did not throw the rocks nor try to throw them. I turned my back to him and walked away. ’’ In Brown v. State, 96 Ga. 481 (20 S. E. 495), the holding is as follows: “ Mere preparation to commit a violent injury upon the person of another, unaccompanied by a physical effort to do so, will not justify a conviction for an assault; and therefore-, where the evidence showed that during an altercation between the person alleged to have been assaulted, and two other persons acting in concert, one of. the latter picked up a stone but made no attempt to cast it at the former, who was about.-twenty steps distant, neither of the two persons so acting in concert could be lawfully convicted of an assault. ” The evidence in the instant case did not authorize a conviction, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.