Wheeler v. State

Court of Appeals of Georgia

Wheeler v. State

16 S.E.2d 489, 65 Ga. App. 810, 1941 Ga. App. LEXIS 421

CourtCourt of Appeals of Georgia

DecidedSeptember 19, 1941

Docket29105.

StatusPublished

Cited by5 cases

This text of 16 S.E.2d 489 (Wheeler v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wheeler v. State, 16 S.E.2d 489, 65 Ga. App. 810, 1941 Ga. App. LEXIS 421 (Ga. Ct. App. 1941).

Pincite

Opinion

MacIntyre, J.

1. As to the question of venue, Lloyd Elkin, the person upon whom the alleged crime was committed, testified: “On or about the 23rd of September, last year, I was working in Atlanta, in Eulton County, Georgia. . . I saw him [defendant] where I was working. I was struck but I didn’t see it. It happened there on the job [where I was working in Atlanta, in Eulton

*811 County, Georgia] in Bast Atlanta.” (Brackets ours.) Another witness identified the defendant as the person committing the assault. This we think, sufficiently established the venue. As was- • said in a somewhat similar case: “In light of this proof, to say that the venue was not shown is to quibble over verbal niceties.” Little v. State, 3 Ga. App. 441 (60 S. E. 113). See Carroll v. State, 121 Ga. 197 (48 S. E. 909); Malone v. State, 116 Ga. 272 (2) (42 S. E. 468); Attaway v. State, 64 Ga. App. 319 (13 S. E. 2d, 99), and cit.; 1 Wharton’s Criminal Evidence (10th ed.), 310, § 108.

3. Ground 3 of the motion was expressly abandoned.

3. The defendant was convicted of assault with intent to murder. Defendant contends that the proof failed to establish an intent to kill, or that the wound was one likely to produce death. Lloyd Elkin and the defendant worked at the same place. Elkin was using a saw bench, and the defendant attempted to take it from him. Elkin told him he was using it and defendant set it down. Elkin started sawing, and the defendant struck him with an average-size claw hammer, which had a handle about fourteen inches long, while Elkin was sawing the wood. This testimony was corroborated. The defendant’s evidence and his statement to the jury were in effect that he and Elkin had a fuss about using the saw bench; that Elkin started cursing him and started to slash him with the saw, and that he then hit Elkin with the hammer in self-defense. Elkin was knocked unconscious and was taken to a hospital. He was unconscious from Monday morning until the following Wednesday. The jury was authorized to find that the hammer, as used, was a weapon likely to produce death, and that the defendant criminally intended to kill. Banks v. State, 193 Ga. 181 (15 S. E. 2d, 190); Merritt v. State, 19 Ga. App. 616 (91 S. E. 885); Nelson v. State, 4 Ga. App. 223 (60 S. E. 1072); Reece v. State, 60 Ga. App. 195 (3 S. E. 2d, 229); Hogan v. State, 61 Ga. 43. The motion for new trial was properly overruled.

Judgment affirmed.

Broyles, C. J., and Gardner, J., concur.

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MacIntyre, J.

1. As to the question of venue, Lloyd Elkin, the person upon whom the alleged crime was committed, testified: “On or about the 23rd of September, last year, I was working in Atlanta, in Eulton County, Georgia. . . I saw him [defendant] where I was working. I was struck but I didn’t see it. It happened there on the job [where I was working in Atlanta, in Eulton

*811 County, Georgia] in Bast Atlanta.” (Brackets ours.) Another witness identified the defendant as the person committing the assault. This we think, sufficiently established the venue. As was- • said in a somewhat similar case: “In light of this proof, to say that the venue was not shown is to quibble over verbal niceties.” Little v. State, 3 Ga. App. 441 (60 S. E. 113). See Carroll v. State, 121 Ga. 197 (48 S. E. 909); Malone v. State, 116 Ga. 272 (2) (42 S. E. 468); Attaway v. State, 64 Ga. App. 319 (13 S. E. 2d, 99), and cit.; 1 Wharton’s Criminal Evidence (10th ed.), 310, § 108.

3. Ground 3 of the motion was expressly abandoned.

3. The defendant was convicted of assault with intent to murder. Defendant contends that the proof failed to establish an intent to kill, or that the wound was one likely to produce death. Lloyd Elkin and the defendant worked at the same place. Elkin was using a saw bench, and the defendant attempted to take it from him. Elkin told him he was using it and defendant set it down. Elkin started sawing, and the defendant struck him with an average-size claw hammer, which had a handle about fourteen inches long, while Elkin was sawing the wood. This testimony was corroborated. The defendant’s evidence and his statement to the jury were in effect that he and Elkin had a fuss about using the saw bench; that Elkin started cursing him and started to slash him with the saw, and that he then hit Elkin with the hammer in self-defense. Elkin was knocked unconscious and was taken to a hospital. He was unconscious from Monday morning until the following Wednesday. The jury was authorized to find that the hammer, as used, was a weapon likely to produce death, and that the defendant criminally intended to kill. Banks v. State, 193 Ga. 181 (15 S. E. 2d, 190); Merritt v. State, 19 Ga. App. 616 (91 S. E. 885); Nelson v. State, 4 Ga. App. 223 (60 S. E. 1072); Reece v. State, 60 Ga. App. 195 (3 S. E. 2d, 229); Hogan v. State, 61 Ga. 43. The motion for new trial was properly overruled.

Judgment affirmed.

Broyles, C. J., and Gardner, J., concur.

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Bluebook (online)

16 S.E.2d 489, 65 Ga. App. 810, 1941 Ga. App. LEXIS 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-state-gactapp-1941.

Opinion

3. Ground 3 of the motion was expressly abandoned.

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