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Assault with intent to murder. Before Judge Geer. Miller Superior Court. August 8, 1953.
W. C. Prather and Annie Clark, who are brother and sister, were indicted for assault with intent to murder B. Cowart, in that they assaulted him with wire pliers and a certain knife, a weapon likely to produce death, and in that they did, with those weapons, strike, cut, stab, beat, and wound him with the intent to murder him. The defendants were, by consent, tried jointly. The jury returned a verdict finding Prather guilty of assault and battery, and finding Annie Clark guilty of assault with intent to murder. Her motion for new trial, based on the usual general grounds and four special grounds, was denied and she has appealed to this court for review.
1. Where upon the trial of one under an indictment for assault with intent to murder, which is broad enough to include the offense of stabbing, evidence is introduced from which the jury would be authorized to find that the stabbing was without justification and at the same time done without the specific intent to kill, or under such circumstances that, had death ensued, the defendant would have been guilty of manslaughter, the same constitutes the statutory offense of stabbing, which is punishable as for a misdemeanor; and it is error requiring the grant of a new trial for the trial court to fail to charge the law relative to the offense of stabbing together with an instruction as to what punishment a conviction of the offense would carry with it. Powell v. State, 7 Ga. App. 744 (67 S. E. 1048); Gaskin v. State, 11 Ga. App. 11 (74 S. E. 554); Colbert v. State, 84 Ga. App. 632 (66 S. E. 2d 836), and citations; and see Powell v. State, 47 Ga. App. 299, 301 (170 S. E. 401).
2. As the case must be remanded for another trial, the general grounds of the motion for new trial are not considered, and the other assignments of error being such as are not likely to recur on another trial are not considered.
J. A. Drake for plaintiff in error.
Saturday May 23 04:05 EDT

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