Sterling v. State

• Citation: 15 S.E. 743,89 Ga. 807
• Parties: STERLING v. STATE.
• Decision Date: 01 August 1892
• Court: Supreme Court of Georgia

15 S.E. 743

89 Ga. 807

STERLING v. STATE.

Supreme Court of Georgia

August 1, 1892

Syllabus by the Court.

1. In opening a criminal case to a jury, preliminary to the introduction of evidence, the solicitor general may state what he hopes to prove, tending to show the motive under which the accused acted in committing the alleged offense. If, an objection to the statement, the court declines to interfere, but instructs the jury that, if the solicitor does not prove what he says he hopes or expects to prove, then they shall give the matter no consideration whatever, no error is committed.

2. On the trial of an indictment for assault with intent to murder, though there be no direct evidence pointing distinctly to any specific motive, the solicitor general, in commenting on the evidence in his argument, may advance and urge any theory as to the motive which is not absolutely inconsistent with the facts and circumstances in proof; motive being pertinent, and inferences from circumstances being legitimate and proper means of arriving at it.

3. The Code, § 4656, declaring that, "in all cases where the term of punishment in the penitentiary is discretionary, the court shall determine that punishment, paying due respect to any recommendation which the jury may think proper to make in that regard," and assault with intent to murder being one of these offenses, it was not error to charge: "In the event that you should think and believe from the testimony that the defendant is guilty of the offense charged, it is your privilege to recommend the defendant to mercy, after finding a verdict of guilty, and the court would sentence the defendant, upon conviction, taking into consideration your recommendation to mercy."

4. A conviction of assault with intent to murder, on circumstantial evidence, may be had, although no particular motive for the commission of the offense is apparent to the jury, and although they may be unable to determine from the evidence what his motive really was.

5. There was no error in refusing a new trial.

Error from superior court, Sumter county; W. H. FISH, Judge.

Charles Sterling was indicted for an assault with intent to murder, and was found guilty, with a recommendation to mercy. A motion for a new trial was overruled, and defendant brings error. Affirmed.

Hinton & Cutts, for plaintiff in error.

C. B. Hudson, Sol. Gen., for the State.

PER CURIAM.

Judgment affirmed.