Madden v. State ( 1877 )

Jackson, Judge.

In this case, but two witnesses were sworn — the prosecutor and one other, witness for the defendant. The prosecutor swore that the defendant struck him over the eye with a knife, but he could not say whether the knife was open or shut. The other witness swore positively that it was shut. No description of the effect of the blow is given, or of the nature of the wound, if any, whether appearing to be made with the blade or the handle. To constitute an assault with intent to murder, the weapon used must be one likely to produce death. A knife shut, and not even attempted to be opened by the party using it, is not such a weapon, and the proof, we think, does not sustain the verdict. Besides, the witness swore that defendant could have killed the prosecutor if he had wished to do so.

On the whole, while we reluctantly interfere with the discretion of the presiding judge, in refusing the grant of a new trial on the sole ground that the verdict is strongly and decidedly against the evidence, and without evidence, the only ground for this motion, we cannot see here evidence enough, either that the weapon was likely to produce death, or that the defendant intended to kill. "We think, therefore, that it is our duty to reverse the judgment, and to grant the new trial.

Judgment reversed.