Nelson v. State

• Decision Date: 09 April 1908
• Docket Number: (No. 1,081.)
• Citation: 60 S.E. 1072,4 Ga.App. 223
• Parties: NELSON. v. STATE.
• Court: Georgia Court of Appeals

60 S.E. 1072

4 Ga.App. 223

NELSON.

v.STATE.

(No. 1, 081.)

Court of Appeals of Georgia.

April 9, 1908.

1. Homicide—Assault with Intent to Murder—Evidence.

The lethal character of the weapon used in making an assault may be inferred from the effect and nature of the wound inflicted.

2. Same—Intent to Kill.

The intent to kill may be shown by the use of a deadly weapon in a manner likely to produce death.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 26, Homicide, § 478.]

3. Criminal Law—Appeal—Review.

There is some evidence to warrant the verdict; and this court cannot interfere.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3074-3783.]

(Syllabus by the Court.)

Error from Superior Court, Fulton County; L. S. Roan, Judge.

Homer Nelson was convicted of assault with intent to murder, and brings error. Affirmed.

Frank L. Haralson, for plaintiff in error.

C. D. Hill, Sol. Gen., for the State.

HILL, C. J. Homer Nelson was convicted of an assault with intent to murder. He made a motion for a new trial on the usual general grounds, and on the following special grounds: First, that the evidence does not show that the weapon used in said assault was a weapon likely to produce death; second, that the evidence does not show that the defendant intended to kill at the time he made the assault charged in the bill of indictment. The motion was overruled.

The material evidence is substantially as follows: The person assaulted was a white boy 16 years of age. At the time of the assault he was running an elevator in the building of the Atlanta Constitution. The defendant was employed in the same building, and, according to the testimony of the prosecutor, was drunk and disorderly and quarreling with another boy, and he admonished him to quit his disorderly conduct, or he would have to get off the floor, and the defendant said he would get off when he got "good and ready, " and demanded that the prosecutor would take him down in the elevator, and threatened that, if this was not done, he would kill him. The prosecutor testified: "I said: 'I don't hurry for nobody.' He said: 'You take me down in a hurry, or I will kill you'—and while I had my left hand on the lever and my right hand on the door, and I went to open the door of the shaft, he hit me in the temple with the butt end of his knife. I hit back at him with my left hand, and he dodged, and turned the knife over, and struck me back of the ear." There was no other witness to the difficulty. The defendant in his statement said that he got on the elevator, and the prosecutor opened the door for him to get in, and said: " 'You look like you didn't like what I said to youa while ago.' I said: 'What did you say?' He says: 'I told you a while ago Tom could whip you.' I said: 'He couldn't do no such thing.' He said: 'You are a God damn liar; don't dispute my word.' He struck me back of the head with a stick. Then he struck me again, and I threw up my arm and said: 'That's all right I didn't mean no harm'— and he struck me again. About that time I had a piece of zinc which I had been using to raise the glasses out of the lye. I was glass washer. I had it in my hand, and in trying to keep him from hitting me I struck him with it. A straw hat I had on he split all to pieces. He stopped hitting me when I struck him. I did not want to hurt the man at all. I just wanted to stop him from hitting me. That was all. I wasn't drunk. I do take a dram sometimes; but I don't drink it around my work." It was the duty of the prosecutor to keep order in the halls of the building. The defendant was several years older than the prosecutor. Immediately after he was cut, the prosecutor ran out of the elevator, and the blood was "spurting out of his ear, and he appeared to be very seriously hurt." The witness who then saw him testified that he did not know whether he would live until he could get a doctor from the way the blood was gushing out of his face.

The physician testified that the wound was in the prosecutor's ear, and that there had been a hemorrhage from it. "It was a dangerous wound. I should consider the ear a very dangerous place to stick a man with a knife. The instrument that made that wound was a weapon likely to produce death. The knife that made that wound was a weapon likely to produce death in the place where it was stuck." On cross-examination the physician testified: "I don't know what kind of weapon produced that wound. I don't know whether it was a pocketknife or not. I didn't examine the wound, and couldn't tell whether it was a smooth cut or a jagged one."

1, 2. Is the evidence sufficient to prove that the weapon used...