Malone v. The State Of Ga.

• Decision Date: 31 October 1886
• Citation: 77 Ga. 767
• Parties: Malone. vs. The State of Georgia.
• Court: Georgia Supreme Court

77 Ga. 767

Malone. vs. The State of Georgia.

Supreme Court of the State of Georgia

OCTOBER TERM, 1886.

Criminal Law. Murder. Malice. Before Judge Marshall J. Clarke. Fulton Superior Court. March Term, 1886.

William Malone was indicted for assault with intent to murder. It was charged that the defendant, " with force and arms and a knife, being a weapon likely to produce death, did, unlawfully and with malice aforethought, assault, beat, cut and stab one J. M. England, with intent then and there to kill and murder him, the said J. M. England." He was found guilty, and moved for a new trial on substantially the following grounds:

(1)-(2.) Because the verdict was contrary to law and evidence.

(3.) Because the court charged the jury that "it is the duty of the court, however, to direct you as to a part ofthe case, viz. the law, " and failed to add that in criminal cases the jury are judges of both the law and the evidence.

(4.) Because the court charged that if malice is in the mind of the slayer at the moment the killing is done, and it moves him to do the killing, such killing constitutes the crime of murder.

(5.) Because the court charged as follows: " If the defendant, Malone, made an assault upon England, and he was moved to do it, not by malice, but by a sudden and violent impulse of passion, and that impulse of passion was excited in any one of the ways mentioned in this section, or by equivalent circumstances, then, if England had died, the crime of voluntary manslaughter would have been committed, and not (he crime of murder."

(6.) Because the court charged as follows: "Under this indictment, he could be convicted, if the evidence showed it, of two other offences, stabbing and assault and battery."

(7.) Because the court admitted testimony as to confessions of defendant. The witness stated that sometime after the difficulty, he was standing on the street-corner with England; that Malone came over and asked if that was England, and on being answered that it was, proposed to shake hands with him, which England declined; and that Malone stated that he desired to beg England's pardon, and knew he had acted with rashness and wrongly.

(8.) Because the court failed to charge as to the weight, character and force of the confessions.

(9.) Because the court refused to charge as follows: "I charge you that if you believe Malone was one-armed, deprived of his natural weapons of offence and defence, it would be lawful and reasonable for him to use a pocket-knife in defence of his person, if, at the time, he believed it necessary to use said knife to protect his person."

(10.) Because the court overruled a demurrer to the indictment on the grounds that it did not allege specifically what use was made of the knife, and that it joined two offences in one count.

The motion was overruled, and the defendant excepted.

Jas. Mayson; Wm. P. Hill, for plaintiff in error.

C. D. Hill, solicitor-general, for the State.

Jackson, Chief Justice.

The defendant in the court below was convicted of the offence of an assault with intent to murder, and on being denied a new trial, excepted and assigned error thereon.

1. The first and second grounds are that the verdict is contrary to evidence, law and justice. We think not. He struck England with a knife near the jugular vein in the throat, and lacked but a trifle of sufficient depth in the cut made by the blade to sever arteries or veins that would have produced death. This was done with a knife, proved by a physician to be a weapon likely to produce death when aimed at this part of the body; therefore he made a stroke with a weapon likely to produce death with intent to kill. Was there malice in the stroke at the neck of England under the facts proved? There was no assault upon the defendant, nor was there anything equivalent to assault. Defendant was coming out of a restaurant with two lewd women; England, with two other men, was about to go into the restaurant, being on the way to it; some remark was made by one of the three men displeasing to the defendant in the presence of the two women of the town, when he recognized England, and saying, " I know you, Coot England, " and repeating something of the same sort again, advanced upon...