Cain v. State , 232 Ga. 804 ( 1974 )

232 Ga. 804 (1974) 209 S.E.2d 158

CAIN
v.
THE STATE.

28874.

Supreme Court of Georgia.

Submitted May 15, 1974. Decided September 24, 1974.

Robert L. O'Neil, for appellant.

Lewis R. Slaton, District Attorney, Carter Goode, Morris H. Rosenberg, Assistant District Attorneys, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., for appellee.

GUNTER, Justice.

This is an appeal from a murder conviction and sentence to life imprisonment. The case was tried before the judge without the intervention of a jury.

The written verdict rendered by the court was: "This case having come on regularly for trial before me without a jury, the defendant and his counsel having requested trial without a jury and having waived jury trial, after hearing evidence and argument of counsel and after considering all facts and circumstances properly before the court, this court finds Gerald Lamar Cain guilty of murder, in that he did unlawfully in the commission of a felony, to wit aggravated assault, cause the death of another human being, one Rosa Hogan."

Code Ann. § 26-1302 provides: "A person commits aggravated assault when he assaults (a) with intent to murder, to rape, or to rob, or (b) with a deadly weapon. A person convicted of aggravated assault shall be punished by imprisonment for not less than one nor more than ten years."

Code Ann. § 26-1101 (b) provides: "A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice."

The evidence presented in this case was close on the question of whether the crime committed was murder or involuntary manslaughter. However, having reviewed the evidence we conclude that it was sufficient to support a conviction for either of these crimes, and having reached this conclusion, the verdict and judgment of the trial judge must be affirmed.

The only error enumerated in this court was the overruling of the appellant's motion for a new trial in the trial court. In addition to the general grounds of the motion there were several special grounds which we have examined, and we find these special grounds to be totally without merit.

Judgment affirmed. All the Justices concur.