Thomas v. State

• Decision Date: 13 April 1896
• Citation: 26 S.E. 748,99 Ga. 38
• Parties: THOMAS v. STATE.
• Court: Georgia Supreme Court

26 S.E. 748

99 Ga. 38

THOMAS v. STATE.

Supreme Court of Georgia

April 13, 1896

Syllabus by the Court.

1. Where, upon the trial of a person indicted for a simple assault, there was no evidence of an intention to commit upon the person alleged to have been assaulted any injury other than a battery, it was error for the court to charge the jury, in effect, that the defendant should be convicted if he attempted to commit a violent injury upon the person of the party assailed, whether the injury intended was a battery or any other violent injury.

2. Where one raised a stick in a striking position, and ran towards another person, 50 yards distant, at the same time threatening to beat that person, and the latter fled whereupon the pursuer, after getting within about half the above-mentioned distance of the pursued, abandoned the pursuit, it was, under all the circumstances, a question for determination by a jury whether or not there was an intention to strike, and, if so, whether or not it could probably have been accomplished if the pursuit had been continued. If there was such an intention, and an apparent ability to carry it into effect, the offense of an assault was committed, though there may not have been an actual ability to inflict the battery intended. If there was no intention to strike at all or if there was no real or apparent ability to inflict a battery, there was no assault.

Error from superior court, Morgan county; J. C. Hart, Judge.

Adam Thomas was convicted of an assault, and brings error. Reversed.

George & George, for plaintiff in error.

H. G Lewis, Sol. Gen., and Anderson, Felder & Davis, for the State.

ATKINSON J.

Thomas was tried in the county court of Morgan county upon an indictment charging him with an assault upon Mrs. Durdin. He was found guilty, and took the case by certiorari to the superior court, where the certiorari was overruled, to which ruling he excepted.

The errors assigned in the petition for certiorari were that the verdict was contrary to law, evidence, etc. Further, because the court erred in refusing to charge, as requested by defendant: "An assault is an attempt to commit a violent injury upon the person of another. This is the definition of an assault as contained in section 4357 of the Code. The violent injury on the person of another contemplated in this section of the Code is a battery, or the unlawful beating of another, so far as it affects this case." The court gave the definition of an assault as contained in this request, but refused to charge the other portion of the request. Because the court erred in refusing to charge, as requested by defendant: "To constitute an assault, there must be an attempt to commit a violent injury upon the person of another, and coupled with such attempt there must be a present ability and intention to commit such injury. In other words, before the defendant can be convicted of an assault in this case, you must be satisfied from the evidence that he (defendant) attempted to commit a violent injury upon the person of Mrs. Durdin; that is, a battery upon her, and that he, defendant, was at the time in striking distance of Mrs. Durdin." And in charging in lieu thereof: "Now, did this defendant, on the day named, in this county, make an attempt to commit a violent injury upon the person of Mrs. Durdin,--to commit a serious personal injury upon her, whether a battery or any other violent injury upon her?" Further, because the court erred in charging: "If the evidence does not satisfy you that this defendant was the man Mrs. Durdin, in her testimony, alleges him to be, or that he made an attempt to commit a violent injury upon her person, whether it be a battery or any other violent hurt to her person, you should acquit the defendant." Alleged to be error because an expression of opinion on the facts as to what Mrs. Durdin had sworn as to the identity of defendant. Further, because it instructed the jury that in a simple assault they might consider whether any other personal injury but a battery was intended by defendant. Error in charging: "But if, on the other hand, you are satisfied, as reasonable, practical men, from the evidence in this case, that this defendant was the man she asserts him to be, and that he did intend to make and did make an assault to commit a personal injury upon this woman, then it would be your duty to return a verdict of guilty in this case." Alleged to be error because an expression of opinion as to what Mrs. Durdin asserted in regard to the identity of defendant.

Upon the trial, the prosecutrix, who was the person assailed testified: That she was standing in a cotton patch near a road, and her attention was suddenly attracted by some person addressing her. She recognized that person as the defendant. He was about 50 yards away. He was humming, whistling, and stooping, and called her three times, and asked who she was. She remained silent. The fourth time, in a more threatening manner, he said, "Who are you, madam?" She said, "Who are you?" He said: "My name is Jim Skinner, madam. Confound your soul, if you don't like what I said, I will take this to your head,"--using an oath, and raising a stick, and starting towards prosecutrix, after having also said, "Don't give me any of your slack...