Smith v. State
| Decision Date | 07 November 1906 |
| Parties | SMITH v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where an indictment charged the defendant and others with the offense of murder, for that they "unlawfully feloniously, willfully, and of their malice aforethought did kill and murder by shooting [a named person] with certain guns and pistols, which the said [defendants] then and there held, and giving [the person named] then and there a mortal wound, the said [named person] then and there died," this was sufficient to furnish a basis for a conviction of assault with intent to murder against one of the defendants and a motion in arrest of judgment, on the ground that under such indictment a verdict of guilty of assault with intent to murder cannot be sustained, was properly overruled.
Error from Superior Court, Pulaski County; J. H. Martin, Judge.
Grant Smith was convicted of assault with intent to murder, and brings error. Affirmed.
Fort & Grice, for plaintiff in error.
E. D Graham, Sol. Gen., for the State.
The defendant was indicted for murder, and convicted of assault with intent to murder. It was not contended that the indictment did not sufficiently charge the offense of murder but a motion in arrest of judgment was made on two grounds: (1) Because no assault was alleged; (2) the indictment did not sufficiently allege an intent to kill.
It is unnecessary to discuss the first contention, further than to mention that the indictment accused the defendant and others of killing and murdering the deceased by shooting him with certain guns and pistols, held by them, and giving to him a mortal wound. It is clear that this included a charge of an attempt to commit a violent injury on the person of another, which constitutes an assault. Pen. Code 1895, § 95.
Neither can the second contention be sustained. The substantial allegations of the indictment are stated in the headnote. It is contended that the charge that the defendant and others "unlawfully, feloniously, willfully, and of their malice aforethought did kill and murder by shooting" does not contain a sufficient allegation of an intent to murder. Under an indictment for murder, a defendant may be found guilty of a lesser offense, if it be one involved in the offense of murder and is sufficiently charged in the indictment. "The lesser offense must either necessarily be included in a general charge of the greater, or, if it may or may not be, then the averments of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser." Watson v. State, 116 Ga. 607, 43 S.E 32. See, also, Thomas v. State, 121 Ga. 331, 332, 49 S.E. 273. Pen. Code 1895, § 1035, declares that, "upon the trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt." The word "attempt" is more comprehensive than the word "intent," implying both the purpose and an actual effort to carry that purpose into execution. 2 Bishop's New Crim. Proc. (4th Ed.) § 80, subsec. 4. In Johnson v. State, 14 Ga. 55, it was said: "In crimes which require force as an element in their commission, there is no substantial difference between an assault with intent, and an assault with attempt, to perpetrate the offense." Murder is defined in Pen. Code 1895, § 60, to be "the unlawful killing of a human being, in the peace of the state, by a person of sound memory and discretion, with malice aforethought, either express or implied." The indictment charged the commission of murder by violence. If the words "of their malice aforethought" were not sufficient to include an intent, where a killing was alleged, the added word "willfully" certainly was so. In King v. State, 103 Ga. 263, 30 S.E. 30, it was held that...
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