Byrd v. State

78 S.E.2d 68, 88 Ga. App. 805, 1953 Ga. App. LEXIS 1212

Opinion

Gardner, P. J.

The defendant was tried for assault with intent to murder and convicted of stabbing. He made a motion for new trial on the usual general grounds, and by amendment added two special grounds. The court denied this motion. The defendant assigns error on this judgment.

Decided September 23, 1953. H. L. Williams, for plaintiff in error. W. Glenn Thomas, Solicitor-General, contra.

(a) As to the general grounds, the evidence amply supported the verdict.

(b) Special ground 1 assigns error because the court charged the principle of law involved in murder, including malice. It is contended that this is error because the person attacked did not die. There is no error in this connection because the only difference between murder and assault with intent to murder is that in the former death ensues from the attack, and in the latter it does not. We know of no other way for the court to charge assault with intent to murder except by charging the principles applicable to murder. This ground is without merit.

(c) Special ground 2 assigns error because the court failed to charge, without a written request, to the effect that, if the prosecutor was attempting to make an attack on the defendant, the defendant would have a right to defend himself. The court charged generally the principle of law of self-defense and justifiable homicide. If a more specific charge on that question was desired, it should have been duly requested in writing. The court did not err in denying the motion for new trial.

Judgment affirmed.

Townsend, and Carlisle, JJ., concur.