Gallery v. State

• Decision Date: 08 May 1893
• Parties: GALLERY. v. STATE.
• Court: Georgia Supreme Court

17 S.E. 863

92 Ga. 463

GALLERY.

v.STATE.

Supreme Court of Georgia.

May 8, 1893.

Assault with Intent to Kill—Presumptions— Instructions—Reasonable Fear.

1. Where death results from the unlawful use of a deadly weapon, the law, by presumption, imputes to the slayer an intention to kill; but, where death does not result, intention to kill is not matter of legal presumption, but matter for inference by the jury. Consequently, it narrowed the functions of the jury too much to instruct that 'if, under this indictment, a killing had ensued, and if the crime would have been murder, then the defendant would be guilty of assault with intent to murder." For the same reason it was error to charge that "if the defendant struck Craven with a weapon likely to produce death, with malice, under such circumstances as make itmurder, then it is immaterial whether he struck Craven on the head or any other part of the body. If he struck him with a weapon likely to produce death, assaulted him under such circumstances that the law would deem it murder had death ensued, then he should be guilty of assault with intent to murder." The court should have left it to the jury as a question of fact whether, under all the circumstances, there was an intention to kill or not. Patterson v. State, 11 S. E. Rep. 620, 85 Ga. 131; Gilbert v. State, (Ga. Oct. term, 1892,) 16 S. E. Rep. 652. "Malice, " where no killing takes place, does not necessarily include an intention to kill. It may coexist with an intention to hurt or injure, and not go beyond. To intend even a slight personal injury, and inflict it without excuse, will involve malice.

2. Killing another with a deadly weapon may be murder, though there was in fact an intention not to kill. This is so because the law will, in the absence of excuse, presume or imply the intention to kill even when to do so is contrary to the actual fact. The purpose of the law is to hold the slayer responsible for the consequences of his act, —not the consequences which might have ensued, but those which did ensue. The mam ground of the presumption is the killing itself. But, where no killing occurs, this ground is wanting. In such case, to infer the intention as matter of law would be to make the law draw the same conclusion from a part as from the whole of the necessary premises. In order for the law itself to imply or infer an intention to kill, there must be a killing; but the jury may, from the facts of the particular case, infer such intention,...