Holland v. State , 97 Ga. 345 ( 1895 )

Atkinson, J.

1. Even though no witness may have specifically described a weapon, with which a battery was alleged to have been committed, as being a “deadly weapon,” yet where the evidence, upon the trial of a case of assault and battery, shows, that such a weapon was in fact used, and was used in such a manner as was likely to produce death, a general instruction to the effect that provocation by words alone would not justify the use of deadly weapons in the infliction of a battery, construed in the light of the facts as they actually appeared, was not so far unwarranted as to require the granting of a new trial; especially where it further appeared that the court also gave in charge to the jury the provisions of section 4694 of the code.

2. Under that section, opprobrious words may justify simple assault, or assault and battery, but will not justify an attack with a deadly weapon, used in a manner likely to produce death. Butler v. The State, 92 Ga. 605. This being so, though the charge of the court was not, in all respects, technically accurate, nor expressed in appropriate terms, yet as the evidence was such- as that no verdict other than that of guilty could have been legally rendered, the discretion of the trial judge in refusing a new trial will not be controlled.

Judgment affirmed.

Fletcher. M. Johnson, for plaintiff in error. Howard Thompson, solicitor-general, contra.