Ford v. State, 27164.

Citation59 Ga.App. 339,200 S.E. 810
Decision Date18 January 1939
Docket NumberNo. 27164.,27164.
PartiesFORD. v. STATE.
CourtGeorgia Court of Appeals

Syllabus by the Court.

The indictment in the instant case having alleged that Samp Williams and Rubber Ford, the two joint defendants, with a certain knife and other sharp instruments to the grand jurors unknown, then and there held by said Samp Williams and Bubber Ford, did make an assault with the intent to murder upon the said C. H. Hardwick, and on the trial the evidence having shown that both Samp Williams and Bubber Ford stabbed and wounded the said Hardwick, the prosecutor, who testified: "That man, Bubber Ford, caught me in the collar and stabbed me, and" I was trying to open my knife in my teeth, and when he stabbed me it just deadened [my] arm and this other man [referring to the other defendant, Samp Williams] he went and cut me with another knife and John Marshall stopped them." Held: The stroke with each of the knives by the two joint defendants is adjudicated in law to be the stroke of each one, as much so as if both of the joint defendants held each knife and had both together, thus holding each knife, struck Hardwick, the prosecutor, therefore there is not such a material variance between the allegations of the indictment and the proof as to require a new trial.

Error from Superior Court, Worth County; R. Eve, Judge.

Rubber Ford was convicted of assault with intent to murder, and he brings error.

Affirmed.

R. S. Foy, of Sylvester, for plaintiff in error.

W. C. Forehand, Sol. Gen, of Sylvester, for the State.

MacINTYRE, Judge.

The defendant, Bubber Ford, was jointly indicted with Samp Williams for an assault with intent to murder C. H. Hardwick, the charging part of the indictment being as follows: "Did then and there unlawfully and with force and arms unlawfully, feloniously, with malice aforethought, and with a certain knife and with other sharp instruments to the grand jurors unknown, then and there held by the said Samp Williams and Bubber Ford, same being a weapon likely to produce death, on and upon one C. H. Hardwick, a human being in the peace of the State, then and there being, did make an assault with the intent, the said C. H. Hardwick to kill and murder, and the said Samp Williams and Bubber Ford, with said weapon, which he the said Samp Williams and Bubber Ford then and there held, did then and there unlawfully, feloniously, and with malice aforethought, the said C. H. Hardwick then and there cut, stab, and wound, with said weapon, on and upon his person, with the intent aforesaid."

The testimony of C. H. Hardwick was "That man, Bubber Ford, caught me in the collar and stabbed me, and I was trying to open my knife in my teeth, and when he stabbed me it just deadened [my]arm, and this other man [referring to the other defendant, Samp Williams] he went and cut me with another knife and John Marshall stopped them." The defendant contends "that such was a fatal variance between the allegations and the proof in that the allegata et probata do not correspond; the particular feature in which they do not correspond is: the indictment charges that the victim stabbed, was stabbed by the plaintiff in error, Bubber Ford, with a certain knife, or other like instrument, held by both Ford and his co-defendant, Samp Williams, when in fact, as shown by the evidence, the knife with which he was stabbed by Bubber Ford was held by Ford and not by him and Samp Williams jointly."

In the case of Leonard v. State, 77 Ga. 764, the original record shows that the charging part of the accusation was as follows: That the three named defendants "with force and arms and with a pistol being a weapon likely to produce death did with malice aforethought unlawfully assault beat and shoot at one Nelson D. Martin with intent to kill and murder said Nelson D. Martin contrary to the laws of said State. * * *" The only ground insisted upon in that case was that the...

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