Kennedy v. State

• Decision Date: 12 January 1943
• Docket Number: No. 29869.,29869.
• Citation: 24 S.E.2d 321
• Parties: KENNEDY. v. STATE.
• Court: Georgia Court of Appeals

24 S.E.2d 321

KENNEDY.

v.STATE.

No. 29869.

Court of Appeals of Georgia,

Division No. 1.

Jan. 12, 1943.

Rehearing Denied Feb. 23, 1943.

Syllabus by the Court.

1. Where two persons were indicted as principals in a felony, and one only was on trial and the court charged the jury that they would be authorized to convict the defendant if the evidence showed beyond a reasonable doubt that he was the actual perpetrator, or that he was present aiding and abetting the other accused in the act alleged, it was not error for the court, in the absence of a written request, to fail to charge the converse to the effect that the defendant on trial could not be convicted if the other accused was the actual perpetrator if the defendant on trial was not present aiding and abetting the other accused in the act done; notwithstanding there might be evidence from which the jury might infer that during theencounter both defendants separately and feloniously cut the prosecutor as alleged.

2. One may testify, from having seen different cuts before, and from seeing the cut in a mirror after it was sewed up, and from having felt the cut when it was inflicted, that the cut was made with a knife as alleged in the indictment. Such testimony was not subject to the objection that it was expert testimony.

3. The jury may infer the deadly character of the weapon from the effect produced. (a) It is not necessary that the proof show the identical weapon as alleged. It is sufficient if the proof show the weapon to be of the same general character, of a similar nature, which could inflict a wound of the same character as might have been inflicted with the weapon alleged.

4. Newly discovered evidence which is only impeaching in its nature will not generally be cause for a new trial. (a) Where a ground in a motion for new trial is based on newly discovered evidence and an issue is made by a counter showing, the finding of the trial court on the issue thus made will not be disturbed unless there was an abuse of discretion.

5. The evidence was sufficient to sustain the verdict.

Error from Superior Court, Thomas County; W. E. Thomas, Judge.

Noah Kennedy was convicted of assault with intent to murder, and he filed a motion for a new trial which was overruled, and he excepted and brought error.

Affirmed.

W. L. Bryan, of Atlanta, Steve M. Wat-kins, of Thomasville, and S. P. Cain, of Cairo, for plaintiff in error.

Geo. R. Lilly, Sol. Gen., of Quitman, and Claude Shaw, Jr., of Atlanta, for defendant in error.

GARDNER, Judge.

1. We will deal with the grounds of the amended motion first. Grounds 1, 2, and 7 assign error on that portion of the charge as follows: "If you believe from the evidence in the case that the defendant, Noah Kennedy, in the County of Thomas, on or about the time named in the indictment, acting alone, or in conjunction with W. E. Broome, whom you believe to have been then and there present, aiding and abetting him in committing the act, did unlawfully, feloniously, and with malice aforethought, and with a certain knife which you believe to have been a certain weapon likely to produce death, in and upon one Willie J. Christie, a human being, in the peace of the State, did made an assault upon Willie J. Christie, with intent to kill and murder the said Willie J. Christie, the said W. E. Broome being then and there present, aiding and abetting him in committing the act with said weapon, --as I say, if Noah Kennedy, alone, or Noah Kennedy being then and there present aiding and abetting W. E. Broome, did unlawfully, feloniously and with malice aforethought, cut and stab and wound the said Willie J. Christie, with intent to kill him as alleged,---if you believe that to be the truth of the case, --and you see no justification for it, then it would be your duty to find the defendant on trial, who is Noah Kennedy, guilty."

The following errors are assigned: (a) The charge misled and confused the jury. (b) It authorized the jury to convict the defendant irrespective of whether the defendant participated in the felonious design of W. E. Broome. (c) The court should have instructed the jury that before they could find the defendant guilty of assault with intent to murder they should find that the defendant made an assault upon Christie with a weapon likely to produce death, with the specific intention to kill Christie, and under circumstances that if death had ensued it would have been murder, or that Broome made such felonious assault on Christie and the defendant participated in such felonious design with intent to kill. (d) The court nowhere charged that if the jury found the defendant did not commit an assault on Christie with intent to kill him and under such circumstances that had death ensued it would have been murder, but did find that Broome made such felonious assault on Christie, the jury would not be authorized to convict the defendant of assault with intent to murder unless they also found that the defendant had participated in such felonious design of Broome, there being evidence that defendant and Broome made separate assaults on Christie and cut and stabbed him. Defendant and Broome being jointly indicted, the failure to so charge left the jury without proper instructions. All of which prejudiced movant. (e) The charge was misleading because it authorized the jury to find the defendant guilty if either he or Broome made a feloniousassault on Christie, irrespective of whether the defendant participated in such design or intent of Broome. (f) Because the court should have charged the jury that the defendant could not be convicted of assault with intent to murder unless they found he assaulted Christie with a weapon as charged in the indictment with specific intent to kill Christie, and under circumstances that had death ensued it would have been murder, or that Broome committed such assault on Christie and defendant participated in such assault.

We have thus specified the errors assigned for failure to charge in the manner hereinbefore set forth for the reason that counsel for plaintiff in error thus presents them in his argument. By reference to the entire charge of the court we find that the jury was properly instructed regarding "intent to commit murder." The court properly and correctly charged the elements essential to constitute the offense of murder. Immediately thereafter the court charged the jury as set forth in the excerpt hereinbefore set out. The defendant and Broome were charged as principals under the Code, § 26-501. This section provides that a principal in the first degree is the actual perpetrator of the crime, and a principal in the second...