Cubbedge v. State

Luke, J.

1. The accused was put upon trial for assault with intent to murder. At the conclusion of the evidence the court, in the presence of the jury, said to counsel: “lam going to limit you to the time allowed in misdemeanor eases. I am going to charge this jury that this is not a case of assault with intent to murder, but that it is a case of assault and battery.” After the argument of counsel to the jury, the judge charged them fully and fairly upon the minor offense of assault and battery embraced in the indictment. Held:

(a) The accused will not be heard to complain that a verdict was directed in his favor as to the major offense charged in the bill of indictment.

(b) The consideration of the jury having been limited to the minor offense of misdemeanor embraced in the indictment, it was within the discretion of the court to limit the argument of counsel to the time allowed by law for such cases.

Decided February 17, 1932. H. A. Boylcin, O. Frank Brant, for plaintiff in error. W. G. Neville, solicitor-general, contra.

(c) The remark of the judge, when considered in the light of the entire record, though inapt, is not subject to the criticism that it was an expression of opinion as to what had been proved in the case.

2. The evidence authorized the verdict.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.