Davis v. State ( 1963 )

Jordan, Judge.

The defendant under an indictment charging him with the offense of assault with intent to murder was tried and convicted. His motion for new trial on the general grounds only was denied, and the exception is to that judgment. Held:

Decided September 4, 1963. Elsie H. Griner, for plaintiff in error. Vickers Nugent, Solicitor General, contra.

Where, as here, the indictment charges the commission of an assault with intent to murder by using a knife likely to produce death, such allegation constitutes an essential element of the offense, and the proof must show that it was a weapon of this character. Mathews v. State, 104 Ga. 497 (30 SE 727). This may be established by direct proof as to the character of the weapon, by an exhibition of it to the jury, or by evidence as to the nature of the wound, or other evidence such as would warrant the jury in finding the instrument was one calculated to produce death. Paschal v. State, 125 Ga. 279, 280 (54 SE 172).

The evidence adduced on behalf of the State which authorized the finding that the defendant, while resisting legal arrest, cut the arresting officer with a knife, inflicting wounds upon him which required approximately fifty stitches to close, was sufficient to warrant the jury to find that the weapon used was one calculated to produce death; and said evidence authorized the verdict rendered. The trial court did not err therefore in denying the motion for new trial which contained the general grounds only.

Judgment affirmed.

Nichols, P. J., and Frankum, J., concur.