Colbert v. State, 33499
Decision Date | 17 September 1951 |
Docket Number | No. 2,No. 33499,33499,2 |
Parties | COLBERT v. STATE |
Court | Georgia Court of Appeals |
Stevens & Stevens, Thomson, for plaintiff in error.
J. Cecil Davis, Sol. Gen., Warrenton, for defendant in error.
Syllabus Opinion by the Court.
1. (a). Patterson v. State, 85 Ga. 131, 133, 11 S.E. 620, 621.
(b) 'Upon a prosecution for assault with intent to murder, proof that the accused shot at and wounded another without legal excuse will raise a presumption of law that the shooting was maliciously done; but a specific intent to kill is never to be presumed where death does not ensue, and must be shown by circumstances authorizing the jury to infer, as matter of fact, that the accused had that intent.' Adams v. State, 125 Ga. 11, 53 S.E. 804.
2. To constitute the offense of assault with intent to murder, there must be a specific intent to kill. This intent is not necessarily or conclusively shown by the use of a weapon likely to produce death, in a manner likely to produce death. Under the proof in this case, the jury should have been given the discretion to convict of a lower offense included in the higher felony charged, if they believed the evidence did not show a specific intent to kill. The failure of the court to charge as to the statutory offense of shooting at another was error. Fallon v. State, 5 Ga.App. 659, 661, 63 S.E. 806, and cases cited; ...
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