Kimball v. State

37 S.E. 886, 112 Ga. 541

Opinion

Simmons, C. J.

1. Upon the trial of one accused of assault with intent to murder, where the evidence for the accused tends to show that there was a mutual combat between the parties, the law of manslaughter, as bearing upon the question whether the accused should be convicted of a lesser offense than that expressly charged in the indictment, is necessarily involved, and it is the duty of the judge, whether requested so to do or not, to charge the jury upon this subject, and a failure to do so is error.

2. A specific intent to murder is an essential ingredient of the crime of assault with intent to murder ; and where one is charged, as principal in the second degree, with assault with intent to murder, he can not be convicted unless it be shown that he not only aided in the act, but also participated ip the murderous design, Clark’s Crim. Law, 89, 90.

Judgment reversed.

All the Justices concurring.