Lanier v. State

• Decision Date: 01 February 1899
• Citation: 106 Ga. 368,32 S.E. 335
• Parties: LANIER. v. STATE.
• Court: Georgia Supreme Court

32 S.E. 335

(106 Ga. 368)

LANIER.

v.STATE.

Supreme Court of Georgia.

Feb. 1, 1899.

Assault with Intent to Murder—Instructions.

On the trial of one charged with the offense of an assault with intent to murder, it is error for the court to charge the jury, "If the defendant cut his wife with a weapon likely to produce death, with malice, under such circumstances as would have made him guilty of murder, had death ensued, then I charge you that he would be guilty of the offense of an assault with intent to murder." And while this error is not entirely cured by further instructions of the court to the effect that the use of the deadly weapon would not of itself authorize the inference of malice, and that the jury would de-termine the existence of malice, or not, from the character of the assault and the intent with which it was made, yet when it clearly appears from the undisputed testimony that the guilt of the accused was thoroughly established, and where there is nothing either in the testimony or in the prisoner's statement which could possibly authorize any inference that there was not an intent to kill under circumstances that make it an aggravated case of an assault with intent to murder, this court will not reverse the judgment of the court below in overruling the motion for a new trial because of error in the charge above quoted. (Syllabus by the Court.)

Error from superior court, Gwinnett county; N. L. Hutchins, Judge.

Andrew Lanier was convicted of an assault with intent to murder, and brings error. Affirmed.

John R. Cooper and Oscar Brown, for plaintiff in error.

C. H. Brand, Sol. Gen., for the State.

LEWIS, J. Andrew Lanier was tried in Gwinnett superior court under an indictment charging him with the crime of an assault with intent to murder, was convicted, and excepts to the judgment of the court overruling his motion for a new trial. Briefly stated, the uncontradicted evidence, as shown by the record, is as follows: The person alleged to have been assaulted was the wife of the accused. The accused seems to have become angered on account of her talking with another man at or near a church in the county where the crime was alleged to have been committed. He made an assault upon her with a razor, cutting her three times; one of the wounds inflicted being in the neck, and came very nearly resulting in her death, — lacking, according to the physicians who examined the wound, only the thickness of paper in severing an artery, which, if cut, would necessarily have resulted in death. The wounds were large and deep, extending several inches. There was further testimony that the defendant had been drinking some that day, but was not drunk at the time of the assault. Just prior to the assault the accused threatened the life of his wife, by stating that he intended "to cut her damned head off." The following is the defendant's statement: "At the time I was said to do this, I did not intend to do anything of the kind. I didn't intend to hurt her, though I did hurt her in some way."

The only ground in the motion for a new trial that merits any consideration whatever is exception to the following charge: "Gentlemen of the jury, if the defendant cut his wife with a weapon likely to produce death, with malice, under such circumstances as would have made him guilty of murder,...