Killian v. State , 19 Ga. App. 750 ( 1917 )

George, J.

1. The court charged the jury that “Assault with intent to murder may be defined as an assault without justification and without any circumstances of mitigation, made by one person upon another, with a weapon in its nature likely to produce death, with the specific intent at the time unlawfully to take away the life of the person assaulted.” Held: This instruction is not subject to the exception that it excludes the necessary ingredient of malice; nor is it error because the court failed to define legal malice. Malice, in its application to the law of homicide, means the intent to take life without legal justification, excuse, or mitigation. If a killing take place as intended and if the killing is without justification, excuse, or circumstance of mitigation, legal malice exists, and the homicide is murder. Caudle v. State, 7 Ga. App. 848 (68 S. E. 343).

2. A correct statement of the law applicable to the case is not erroneous because the court failed in the same connection to give to the jury other and further instructions. Hill v. State, 18 Ga. App. 259 (89 S. E. 351), and cases there cited.

3. In the trial of a criminal case the failure of\the court to instruct the jury in express terms that they are the judges of the law and of the facts, that the law is to be taken from the court, and that, in weighing the testimony of the witnesses, their interest or want of interest, knowledge or want of knowledge, etc., is to be considered, is not reversible error, where no appropriate request was made for such instructions, and where the court correctly charged the law of the ease and submitted the issue to the jury. The court in this case fairly instructed the jury with reference to the weight and credit to be given to the defendant’s statement.

4. The further portions of the charge, defining the offense of stabbing, and submitting the question thereof to the jury, are without substantial merit. The defendant was indicted for assault with intent to murder by wilfully and feloniously stabbing another with a knife, and the evidence is sufficient to support the verdict. The court did not err in overruling the motion for a new trial.

Judgment affirmed..

Wade, C. J., and Luhe, J., concur.