Kimbro v. State

147 S.E.2d 876, 113 Ga. App. 314, 1966 Ga. App. LEXIS 1049

• Court: Court of Appeals of Georgia
• Decided: February 24, 1966
• Docket: 41801
• Status: Published

Opinion

Nichols, Presiding Judge.

Norman Kimbro was indicted for the murder of Nora Bell Turner and convicted of assault with intent to murder. Thereafter, his motion for new trial was overruled and on appeal he complains of an excerpt from the charge, the failure to charge, and contends that the verdict returned was not authorized by the evidence.

On the trial of the case the death certificate was not introduced in evidence, nor did the physician who attended the deceased when she died testify, and the only testimony as to the cause of death was by a lay witness who testified as to the location of the wounds on the body and based upon such facts testified that he believed the cause of death to be such gunshot wounds.

■Held:

1. Where one is charged with murder by shooting and the evidence does not demand a finding that the victim died from such gunshot wounds and the defendant admits the shooting, a verdict of guilty of assault with intent to murder may be authorized and it is not error to charge the jury on such lesser crime. See Pope v. State, 13 Ga. App. 711 (2) (79 SE ); Watson v. State, 116 Ga. 607 (43 SE 32); Smith v. State, 126 Ga. 544 (55 SE 475), and citations.

Submitted February 8, 1966 Decided February 24, 1966 Rehearing denied March 14, 1966 Ballard & Thigpen, W. D. Ballard, Troy A. Thigpen, Jr., for appellant. Richard Bell, Solicitor General, for appellee.

(a) The evidence authorized the verdict of guilty of assault with intent to murder and the trial court did not err in charging thereon.

2. Assuming without deciding that under all the evidence a charge on self-defense was authorized, in the absence of a timely request for a more detailed charge on such subject the charge given sufficiently covered the law of self-defense.

Judgment affirmed.

Hall and Deen, JJ., concur.