Isom v. State

• Decision Date: 08 July 1889
• Citation: 9 S.E. 1051,83 Ga. 378
• Parties: ISOM v. STATE.
• Court: Georgia Supreme Court

9 S.E. 1051

83 Ga. 378

ISOM v. STATE.

Supreme Court of Georgia

July 8, 1889

Syllabus by the Court.

An indictment for assault with intent to murder by stabbing includes the minor offense of stabbing, and a verdict finding this minor offense need not negative the exception in the statute by setting out that the stabbing was not done by the prisoner "in his own defense, or other circumstances of justification;" the meaning of the verdict, construed in the light of the indictment, being that the accused was guilty of the offense, and not of the mere act of stabbing.

Error from superior court, Dougherty county; BOWER, Judge.

Indictment for assault with intent to murder. Defendant was convicted of stabbing, and from an order denying a motion in arrest of judgment he brings error.

D. H Pope, for plaintiff in error.

W. N Spence, Sol. Gen., for the State.

BLECKLEY C.J.

The indictment had but a single count. It charged the offense of assault with intent to murder, by cutting and stabbing with a razor or other sharp instrument to the jurors unknown. The verdict was, "We, the jury, find the defendant guilty of stabbing." Should the motion in arrest of judgment have been sustained? Section 4369 of the Code reads as follows "Any person who shall be guilty of the act of stabbing another, except in his own defense, or other circumstances of justification, with a sword, dirk, or knife, or other instrument of the like kind, shall, on conviction, be punished [as prescribed in section 4310 of this Code:] provided, always, that if such stabbing shall produce death the offender shall be guilty of murder or manslaughter, according to the facts and circumstances of the case; or, if such stabbing shall not produce death, and the facts and circumstances show that it was the intention of the person stabbing to commit the crime of murder, then and in such case, the offender shall be guilty of the offense of an assault with intent to commit murder." Had the indictment charged the offense of stabbing only, it should by its terms have negatived the exception in the statute; that is, it should have alleged that the act of stabbing was not done by the accused "in his own defense, or other circumstances of justification." Elkins v. State, 13 Ga. 435. But as the offense charged was assault with intent to murder by stabbing, the exception was impliedly negatived by other terms found in the indictment, to-wit, "with intent then and there unlawfully, feloniously, and with malice aforethought to kill and murder." Arnold v. State, 51 Ga. 144. It follows that the kind of stabbing alleged in the indictment was criminal stabbing; and, as verdicts are to have a reasonable intendment, and are not to be set aside unless from necessity, (Code, § 3561,) the verdict should be construed as finding a criminal stabbing,--that is, such as the indictment alleges,--the meaning of the jury being that the offense committed, by reason of the intent to murder being absent, was not the major offense charged, but the minor offense...