Opinion
35210.
DECIDED JULY 7, 1954.
Assault with intent to murder. Before Judge Carpenter. Baldwin Superior Court. March 30, 1954.
Robert H. Green, Wilbur B. Nall, for plaintiff in error.
Geo. D. Lawrence, Solicitor-General, contra.
1. Where, on the trial of one charged with the offense of assault with intent to murder, a theory of defense (if raised at all) arises from the defendant's statement to the jury, it is not error for the trial court, in the absence of a timely written request, to fail to charge the law relative to such theory of defense. Evans v. State, 68 Ga. App. 207 ( 22 S.E.2d 618), and citations. The evidence in the present case does not present the theory of defense that the defendant, in assaulting the prosecutor, was seeking to protect the person or the reputation of his wife. There is no merit in special ground 1 of the motion for new trial.
2. "The essential ingredient, mutual intent, in order to constitute mutual combat, must be a willingness, a readiness, and an intention upon the part of both parties to fight. Reluctance, or fighting to repel an unprovoked attack, is self-defense and is authorized by law, and should not be confused with mutual combat." McDaniel v. State, 197 Ga. 757 (3), 759 ( 30 S.E.2d 612). The evidence for the State in the present case showed an unprovoked assault by the defendant on the prosecutor, which, if successful, would have been murder. The statement of the defendant was that he struck only in self-defense and had no intention to fight with the prosecutor. The evidence neither required nor authorized the court to charge on the subject of mutual combat. Robinson v. State, 87 Ga. App. 305, 307 ( 73 S.E.2d 578), and citations.
3. In order to be intelligible, special ground 3 requires reference to the brief of evidence. It is not complete within itself, therefore, and will not be considered. Cathey v. State, 28 Ga. App. 666 (4) ( 112 S.E. 915); Watkins Co. v. Mims, 35 Ga. App. 170 (3) ( 132 S.E. 241).
4. A trial court, in the exercise of its discretion, may permit the State, after it has rested its case, to reopen its case and introduce evidence establishing the venue of the alleged crime, and such an exercise of discretion will not be disturbed by this court. Sims v. State, 195 Ga. 485 (6) ( 25 S.E.2d 1), and citation. There is no merit in special ground 4 of the motion for new trial.
5. "Where in a criminal case, the judge distinctly charges the jury that if they believe the evidence offered in behalf of the accused, they should acquit him, the inadvertent omission to state what should be the form of their verdict in the event of acquittal will not be cause for a new trial." Nalley v. State, 11 Ga. App. 15, 18 ( 74 S.E. 567); Harrell v. State, 80 Ga. App. 827 ( 57 S.E.2d 499). There is no merit in special ground 5 of the motion for new trial. While the trial court did not give the form of the verdict in the event the jury found the accused not guilty of assault with intent to murder, the court in a recapitulation of the charge on the circumstances under which the defendant would be acquitted did give the form of the verdict to be followed in such event.
6. Where the trial court has fully and fairly charged the law on the subject of the fears of a reasonable man and instructed the jury when such fears would justify an assault by the accused upon his assailant or supposed assailant, it is not error for the court to charge "that a bare fear that his life was in danger or that a felonious assault was about to be committed upon him [the accused] would not justify the defendant . . . in stabbing . . . [the prosecutor]." Campbell v. State, 125 Ga. 752 ( 54 S.E. 666). Special ground 6 is without merit.
7. Where, on the trial of one charged with assault with intent to murder by stabbing with a knife, there is evidence which would authorize the jury to find that the assault was made upon the prosecutor by stabbing him with a knife, a charge is necessitated on both the offense of assault with intent to murder and the lesser crime of stabbing. Summerville v. State, 77 Ga. App. 106, 109 ( 47 S.E.2d 830); Mitchell v. State, 6 Ga. App. 554 (2) ( 65 S.E. 326); Napper v. State, 123 Ga. 571, 572 ( 51 S.E. 592), and citations. In such a case, it comports with reason and logic to charge first the law relative to assault with intent to murder, and then to follow such instruction with a charge on the law of stabbing. The trial court's charge on these two subjects was full and fair. It charged under what circumstances the defendant would be guilty of assault with intent to murder and under what circumstances the defendant would not be guilty of that offense; and, having completed the charge on that subject, proceeded with a full and complete charge on the law of stabbing; and the charge is not subject to the criticism that it instructed the jury that they had only the choice of finding the defendant guilty of one or the other of the two crimes.
8. The evidence authorized the verdict finding the defendant guilty of assault with intent to murder.
DECIDED JULY 7, 1954.
Mr. and Mrs. W. M. Livingston were jointly indicted for the offense of assault with intent to murder, in that on July 11, 1953, they, "with force and arms and a certain knife, the same being a weapon likely to produce death, did unlawfully and with malice aforethought, make an assault upon one John S. Nolan and then and there with said knife, not in self-defense, nor under circumstances of justification, did, unlawfully and with malice aforethought, cut and stab said John S. Nolan with the intent, then and there, unlawfully and with malice aforethought, to kill and murder said John S. Noland, contrary to the laws of said State, the good order, peace and dignity thereof."
Mrs. Livingston was acquitted on the joint trial of the defendants and is not a party to the present writ of error. Mr. Livingston was found guilty as charged. His motion for new trial, based on the usual general grounds and seven special grounds, was denied, and he has brought the present writ of error to this court for a review of that judgment.
The assignments of error in the special grounds of his motion for new trial are as follows:
"1. Defendant contends that the court erred in failing to charge the principle of law that `parents and children may mutually protect each other, and justify the defense of the person or reputation of each other,' because the defendant, W. M. Livingston, said: `He called her up several times in Macon and I came by and my wife said she was sorry she carried on. Had three children and I couldn't make it by myself; so I decided I would take her back and I come through Milledgeville going to Rome and I decided I would go to John Nolan and tell him to stay away from my wife, that we were going back together.' Applying the law as quoted above, the defendant had the right to warn John Nolan that he (defendant) and his wife were going back together and for John Nolan to leave her alone, and the jury were not fully instructed with the law pertaining to mutual protection of families, and the members thereof by each other. Movant contends that if the jury had been instructed on this subject that a different and more favorable verdict would have been reached by the jury.
"2. Movant further contends that the court failed to charge on mutual combat. The court did charge on the subject of justification as to stabbing, but failed to charge that a person has the right to protect himself with such force to repel or overcome harm that is apparent to the defendant at the time the assault took place. It was said by the defendant in his statement that Nolan came toward defendant with pliers in his hand and that defendant took the pliers when it became apparent that defendant was in danger.
"3. Movant contends the court erred in failing to charge the jury on justification of an assault that would likely produce death, if such assault was necessary to repel an attack on the defendant. The court did charge on justification for stabbing, but failed to charge on justification to commit an assault which might produce death, if the assault became necessary to protect the defendant from the assault of the prosecuting witness. Movant contends that it was more important for the court to charge the law of justification of an assault, if necessary to protect a person from his assailant. The court should have charged that it is justifiable for a person to use superior force to stop his assailant, if necessary, even to the taking [of] the life of the assailant in protection of his own life.
"4. Movant contends the court, in failing to grant the motion of the defendant that this case be dismissed on the ground that there was no proof submitted by the State that this crime was [committed] in Baldwin County, if there was a crime, committed error, and the ruling of the court in permitting the State to re-open its case was prejudicial, harmful, and hurtful to this movant, because the State had announced that the `State rests' and this had the import that the State was satisfied with its case, when as a matter of fact the State had failed in a necessary element of proof, and the court in permitting the State to introduce and re-open its case for further evidence tended to influence the jury that the defendant had committed a crime.
"5. Movant contends that the charge of the court in giving the form of the verdict in the event the jury found defendant guilty of assault with intent to kill, and failing to give the form of the verdict, immediately following that, if the jury found the defendant not guilty of assault with intent to kill. The court did give the form of the verdict in the event the jury found the defendant not guilty, after the charge pertaining to the lesser crime, that is, stabbing, and this did tend to leave the jury with the impression that it was their duty to find the defendant guilty of the crime of assault with intent to kill, but that if they found the defendant was not guilty of stabbing, they could acquit.
"6. Movant contends that that portion of the court's charge, `I charge you that a bare fear that his life was in danger or that a felonious assault was about to be committed upon him would not justify the defendant . . . in stabbing John S. Nolan,' [was erroneous?] for the reason that a `bare fear' in such a case as this may be sufficient to justify the fears of a reasonable man, under the circumstances that were present at the time the alleged crime was committed, and this portion of the court's charge was conflicting, confusing, and tended to impress the jury that a reasonable man could not have sufficient fear under the conditions and circumstances, the evidence, and the statement of the defendant.
"7. Movant contends the language of the court in that portion of his charge which says, `Should you not believe beyond a reasonable doubt that these defendants are guilty of assault with intent to murder, you would not convict either of them of that offense,' which movant contends is contrary to law and the principles of justice because this language is followed by the suggestion by the court that the defendants could have been guilty of `stabbing'. The court should have charged that the crime of `assault with intent to murder' is a reducible crime, and can be reduced to `stabbing' rather than imply in the language quoted and . . . [italicized] above that "stabbing' was also charged in the indictment. This had the effect of instructing the jury that two crimes were charged in the bill of indictment and left the jury with the choice of finding the defendant guilty of some one of the crimes charged in the bill of indictment."
1-7. Headnotes 1 through 7 speak for themselves and require no further elaboration.
8. From the evidence adduced on the trial, the jury was authorized to find: that, during the time the defendant and his wife resided in Milledgeville, the prosecutor, a married man, paid improper attentions to the defendant's wife; that the defendant and his wife moved to Macon, but the prosecutor continued to pay improper attentions to the defendant's wife; that on a trip to Rome, the defendant and his wife drove to Milledgeville, located the apartment building in which the prosecutor and his wife lived, inquired of the occupants of the apartment directly beneath that of the prosecutor where the prosecutor lived, and were told that he lived in the apartment upstairs directly over theirs; that the defendant and his wife proceeded upstairs, located the prosecutor's apartment, and, without knocking or otherwise announcing their presence, entered the prosecutor's apartment, and the defendant inquired if he were John Nolan; that the prosecutor said that he was, and the defendant struck him knocking him unconscious; that the occupants of the apartment below heard a great deal of noise in the prosecutor's apartment; that Mrs. Livingston ran down the steps and out to her automobile; that the defendant ran down the stairs and out to the car; that the defendant had blood on his left hand and a switch-blade knife in the other; that one of the occupants of the apartment beneath that of the prosecutor went upstairs as the defendant was running down, to investigate what had happened in the prosecutor's apartment, and found the latter severely cut and bleeding about the head, face, neck, and shoulders; that as a result of his wounds the prosecutor had to remain in the hospital two weeks. From these authorized findings, the jury was authorized to infer that the prosecutor was assaulted by the defendant with a switch-blade knife, a weapon likely to produce death in the manner in which it was used, and that the assault was made with intent to murder.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.