Dixon v. State

Bell, Chief Judge.

1. The defendant, jointly indicted with two other individuals, was convicted of two counts of assault with intent to murder by stabbing two victims with a knife. The State’s evidence showed as to Count 1 that the defendant actually inflicted the wounds with a knife, whereas in Count 2, one of his co-actors wounded the victim and the defendant was a conspirator as to this offense. The court charged the jury on the law of conspiracy but did not particularly tailor this portion of the instructions as applying only to Count 2. This failure is enumerated as error as being confusing and misleading to the jury. When the charge is read as a whole, and considering the evidence of a conspiracy between the defendant and his co-indictees, it is plain and explicit that the instructions on conspiracy are applicable only to count 2 of the indictment and the jury could not reasonably have been misled. Cook v. State, 22 Ga. App. 770 (13) (97 SE 264).

Submitted January 6, 1970 Decided February 13, 1970. Margaret Hopkins, Jess H. Watson, for appellant. Lewis R. Slaton, District Attorney, J. Roger Thompson, Tony H. Hight, Carter Goode, for appellee.

2. The trial court did not charge the jury on mutual combat as to Count 1. This is not error as there was no evidence of a mutual agreement or intent between the defendant and his victim to fight, and the latter was unarmed. Grant v. State, 120 Ga. App. 244 (170 SE2d 55).

3. The only attack on the sufficiency of the evidence is that there was no evidence that the weapons involved were capable of inflicting death. The evidence of the nature and the seriousness of the wounds inflicted authorized the jury to find that the knives (which were not received in evidence) used by the defendant and his co-indictees were capable of inflicting death. Evans v. State, 68 Ga. App. 207 (2) (22 SE2d 618); Kennedy v. State, 68 Ga. App. 852 (3) (24 SE2d 321); Benford v. State, 73 Ga. App. 426, 428 (36 SE2d 833).

Judgment affirmed.

Quillian and Whitman, JJ., concur.