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Brooking v. State

125 S.E. 504, 33 Ga. App. 49, 1924 Ga. App. LEXIS 712
Court of Appeals of Georgia·Decided November 12, 1924·No. 15786·Published·Cited by 7 cases

Opinion

Bloodworth, J.

In Kennedy v. State, 10 Ga. App. 794 (74 S. E. 95), this court, citing a number of cases to support the proposition, held: “The accused having been indicted for the offense of assault and battery, and the evidence demanding a finding that if any offense at all was committed, it was that of .an unlawful battery, there could be no conviction of simple assault.” See Penal Code [50] (1910), § 19; Harris v. State, 3 Ga. App. 457 (60 S. E. 127); Carter v. State, 7 Ga. App. 44 (1) (65 S. E. 1072); Fronebarger v. State, 27 Ga. App. 607 (109 S. E. 512).

This case is controlled by the rulings in the foregoing cases, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Lulce, J., concur.

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Brooking v. State, 125 S.E. 504, 33 Ga. App. 49, 1924 Ga. App. LEXIS 712 (Ga. Ct. App. 1924).

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