McMullen v. State

• Decision Date: 16 July 1948
• Docket Number: 32094.
• Citation: 48 S.E.2d 703,77 Ga.App. 454
• Parties: McMULLEN v. STATE.
• Court: Georgia Court of Appeals

48 S.E.2d 703

77 Ga.App. 454

McMULLEN v. STATE.

No. 32094.

Court of Appeals of Georgia, Division No. 2.

July 16, 1948

The plaintiff in error, James McMullen, hereinafter referred to as the defendant, was tried and convicted in the Superior Court of Baldwin County for the offense of assault with intent to murder one Tommie Lee Allen.

The evidence was in sharp conflit, but one phase of it when construed in its light most favorable to support the verdict authorized the jury to find that the defendant on the afternoon of the 23rd day of March, 1947, and on a public street of the City of Milledgeville and without provocation stabbed Tommie Lee Allen in the chest with a knife; that as a result of this wound the victim was confined in Doctor Binion's Hospital for one month and for three months thereafter in the United States Naval Hospital at Dublin that during a part of that time the victim was near death and is still to some extent affected by the wound.

The jury returned a verdict of guilty and fixed the punishment of the defendant at not less than 2 nor more than 8 years in the penitentiary. The defendant was accordingly sentenced by the trial court. He filed a motion for a new trial on the general grounds only which was overruled, and this judgment is assigned as error.

R L. Carr, of Milledgeville, for plaintiff in error.

C. S. Baldwin, Jr., Sol. Gen., of Madison, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND Judge.

The essential elements of the crime of assault with intent to murder are as follows: (a) There must be an assault by one person on another with a weapon that in the manner in which it is used is likely to produce death. (b) The assault must be actuated by malice, either express or implied. (c) The assault must be made with the specific intent to kill on the part of the person making it. See Reddick v. State, 11 Ga.App. 150, 74 S.E. 901; Anderson v. State, 51 Ga.App. 98(1), 179 S.E. 654.

In the instant case the jury was authorized to find that the assault was committed by the defendant upon the victim with a weapon that in the manner in which it was used was likely to produce death. It was authorized to find that the assault was actuated by malice. The jury was authorized to infer the intent to kill from the violence of the assault, the deadly nature of the weapon employed, the lack of provocation and other circumstances surrounding the assault and throwing...