Kimball v. State

• Decision Date: 24 January 1901
• Citation: 37 S.E. 886,112 Ga. 541
• Parties: KIMBALL et al. v. STATE.
• Court: Georgia Supreme Court

37 S.E. 886

112 Ga. 541

KIMBALL et al. v. STATE.

Supreme Court of Georgia

January 24, 1901

Syllabus by the Court.

1. Upon the trial of one accused of assault with intent to murder, where the evidence for the accused tends to show that there was a mutual combat between the parties, the law of manslaughter, as bearing upon the question whether the accused should be convicted of a lesser offense than that expressly charged in the indictment, is necessarily involved; and it is the duty of the judge, whether requested so to do or not, to charge the jury upon this subject, and a failure to do so is error.

2. A specific intent to murder is an essential ingredient of the crime of assault with intent to murder; and where one is charged, as principal in the second degree, with assault with intent to murder, he cannot be convicted unless it be shown that he not only aided in the act, but also participated in the murderous design. Clark, Cr. Law, 89, 90.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Julius Kimball and others were convicted of assault with intent to kill, and Kimball brings error. Reversed.

John R. Cooper and Harman Brasch, for plaintiffs in error.

Hope Polhill, Sol. Gen., for the State.

PER CURIAM.

Judgment reversed.