Trowbridge v. State

• Decision Date: 10 March 1885
• Parties: TROWBRIDGE et al. v. THE STATE OF GEORGIA.
• Court: Georgia Supreme Court

74 Ga. 431

TROWBRIDGE et al. v. THE STATE OF GEORGIA.

Supreme Court of Georgia.

March 10, 1885

February Term, 1885.

1. Where an indictment charged an assault with intent to murder by using a weapon likely to produce death, but did not charge any beating or wounding, and the jury found the defendant guilty of assault and battery, if no objection was made to the verdict when it was returned into court, for want of allegations in the indictment to support it, and no motion was made to arrest the judgment for this reason, and a new trial was not applied for on this specific ground, a reversal will not be granted by this court, on the general ground that the verdict is contrary to law.

( a. ) If the point had been raised at the proper time and in the proper manner, semble that it would not have been sustained, but that the verdict would have been good, on the ground that the greater offense includes the less.

2. Where two defendants, jointly indicted, elected to be tried jointly, and made no reservation of the right to testify for each other, as though they had severed and were tried separately, there was no error in refusing to allow the wife of one of the defendants to testify in favor of the other defendant then on trial.

3. After having been elected to be tried jointly, and after evidence had been heard on the trial, it was then too late for either of the defendants to demand a severance, and to insist upon the right to be tried severally.

4. The evidence being conflicting as to the weapon used, the jury could believe the prosecutor in preference to the witness for the defendants.

( a. ) It is not indispensable to prove the precise weapon set forth in the indictment. It is sufficient if both were weapons likely to produce death, and were capable of inflicting the same character of injury.

5. There was no error in the charges excepted to, and the finding of the jury was extremely merciful to these defendants.

Criminal Law. Assault with Intent to Murder. Assault and Battery. Practice in Supreme Court. Practice in Superior Court. Before Judge RONEY. Richmond Superior Court. April Term, 1884.

To the report contained in the decision, it is only necessary to add that the indictment charged the defendants with assault with intent to murder by using " an ax, a weapon likely to produce death." There was also a count charging one of them with being an accessory before the fact. The prosecutor testified that he was struck with an ax. One of the defendants claimed that it was done with a rock. Both defendants claimed that their conduct was justifiable, and that the prosecutor was not struck until he had turned, when one of the defendants was following him, and threatened to kill the latter. The evidence was somewhat conflicting. The jury found defendants guilty of assault and battery. The court sentenced one of them to pay a fine of $500.00, or to be imprisoned twelve months, and the other to pay a fine of $250.00, or to be imprisoned six months. Defendants moved for a new trial on numerous grounds, the substance of which sufficiently appears from the decision, where they are considered. The motion was overruled, and they excepted.

J. S & W. T. DAVIDSON, for plaintiffs in error.

BOYKIN WRIGHT, solicitor general, for the state.

HALL Justice.

The defendants were tried for assault with intent to murder, and found guilty of assault and battery. The indictment set forth a felonious assault with a weapon likely to produce death but charged no beating or wounding. No objection was made to the verdict when it was returned into court, because there was no allegation in the indictment to support the verdict for the battery. No motion was made to arrest the judgment for this reason, nor was a new trial applied for on this specific ground. The first ground of the motion for a new trial complains that " the verdict is contrary to law."

1. In view of certain rulings of this court, wherever an injury has been inflicted on the person in connection with such an assault, it would be the safer course to charge it in the indictment, because it would, in every instance of a conviction of the lower offense of assault and battery, save the necessity of considering such points as that made in this instance. In Clarke's case, 12 Ga. 350, it was held generally that when the beating was alleged, the jury might return a verdict for assault and battery on an indictment for assault with intent to murder. So also in Bard's case, 55 Id., 319, where striking and wounding was charged. But neither of these...