Mack v. The State Of Ga.

• Decision Date: 30 September 1879
• Citation: 63 Ga. 693
• Parties: Mack. v. The State of Georgia.
• Court: Georgia Supreme Court

63 Ga. 693

Mack. v. The State of Georgia.

Supreme Court of the State of Georgia

(September Term, 1879.)

Criminal law. Manslaughter. Assault with intent to murder. Before Judge SpEER. Bibb Superior Court. October Adjourned Term, 1878.

Reported in the opinion.

Washington Dessau, for plaintiff in error.

*C. L. Bartlett, solicitor general; A. Proudfit, for the state.

Bleckley, Justice.

Mack was indicted for the offense of assault with intent to murder, by stabbing and cutting in the back one Stephen Mc-Bride, with a knife, the same being a weapon likely to produce death. The evidence showed that a quarrel took place in Mc-Bride's kitchen between McBride and one John Adkins, the prisoner's father-in-law, in the night, about supper-time. The parties were colored people, and there were some twenty negroes in the kitchen on the occasion, among them the prisoner, and McBride's mother. None except McBride and Adkins took part in the quarrel. Each of these drew his knife (as to which was the first to draw, the evidence was apparently conflicting). By degrees they moved towards the door, with knives drawn, Adkins backing and McBride following. About the time Adkins reached the door McBride was stabbed in the back from behind. The prisoner was seen by some of the witnesses to strike the blow. He denied that he did it, and, so far as appears, never admitted the act, nor rendered any excuse for it.

The position of McBride and Adkins at the time the stabbing took place, and what was transpiring at the moment, may be gathered from the following extracts from the brief of testimony. McBride testified: "When I was cut John Adkins was about at the door. I was following him. He had his knife open. I had him by the wrist of the hand that he had his knife in.... I was right at the door at the time.... I had hold of his wrist with my left hand, and had a knife in my right hand." Abram Fuse, another witness for the state, testified: "McBride caught Adkins' hand with the knife in it, and held a knife over Adkins; then McBride's mother took the knife from Adkins, and called me to take the knife from McBride. *I was afraid to get hold of him. I put my hand on his shoulder, and grabbed him by the hand. At this time, prisoner ran up and stuck a knife in him.... I had hold of McBride, who had hold of Adkins, and prisoner was right behind me. I did not catch McBride at first, as he had his knife drawn over Adkins. He was telling him to say it again. He had his knife raised—blade open." It was in evidence that Adkins and the prisoner lived together, about one mile from the scene of the difficulty.

In charging the jury, the court treated the indictment as embracing but one offense, that of assault with intent to murder, making no allusion in the charge to the minor offenses of stabbing, assault, or assault and battery. The law of murder was expounded, and the jury were told that to constitute the offense on trial, all the elements of murder are requisite, save and except the death of the party assaulted. In treating of these elements, the court said: "To reduce the offense from the crime of murder to manslaughter, it must appear that there was some actual assault upon the...