Kennedy v. State

G-uerry, J.

The defendant was charged with assault with intent to murder. He was convicted of the offense of assault and battery. The evidence for the State made out a case of unprovoked assault and battery at least. The defendant in his statement at the trial admitted that he beat the prosecutor with a whip or stick. His statement further showed his anumus towards the prosecutor; and the only attempt at justification was that the prosecutor “jerked out his knife;” but nowhere does it appear, either from the statement or the evidence, that any attempt was made by the prosecutor to use it. As was said in Seyden v. State, 78 Ga. 105: “We are of opinion that the verdict was demanded by the evidence, and that another hearing, if the law be regarded, would result in the same way; and where this is the case, as has been frequently held, the new trial will be refused.” Also in Williams v. State, 15 Ga. App. 311 (82 S. E. 817), it was said: “Where in a criminal case not only the evidence but the defendant’s statement demanded the verdict rendered, a new trial will not be granted, even though the judge may have committed errors in his charge to the jury, in rulings on evidence, and in refusing to order a mistrial on account of improper argument of counsel. If the jury reached the only result which was legally possible in the case, the judgment of the trial judge will not be reversed merely for the purpose of allowing the case to be heard again, in order that the same result may be more technically reached.” See also Usry v. State, 17 Ga. App. 268 (86 S. E. 417); Tyre v. State, 35 Ga. App. 579 (134 S. E. 178); Bernolak v. State, 18 Ga. App. 7 (89 S. E. 302); Haupt v. State, 108 Ga. 60 (2) (33 S. E. 829). The court did not err in refusing a new trial.

Judgment affirmed.

Broyles, G. J., concurs. MacIntyre, J., dissents.