DocketNumber： 44026
Citation Numbers： 118 Ga. App. 650
Judges： Deen, Pannell
Filed Date： 11/12/1968
Status： Precedential
Modified Date： 1/12/2023
1. The defendant was indicted for “attempt to commit a violent injury on [a named person], and did unlawfully cut and stab the said female so assaulted, with the intent and purpose then and there to have carnal knowledge of her.” There was evidence that the defendant had a knife with which he deliberately cut the victim on the hand and drew blood. Other details of the testimony established that the defendant's acts were motivated by a sexual purpose, but that he left the house after about an hour without actually disrobing and without physically attempting to rape the victim. Whether his intent was to do so is of course a jury question and remained so even though an intent originally formed was abandoned before the attempt was made. Gragg v. State, 74 Ga. App. 719, 722 (41 SE2d 274). Yet the evidence does not demand a finding that the assault might not have been made for a lesser purpose, so as to leave the case outside the rule in Gaddis v. State, 107 Ga. App. 661, 662 (131 SE2d 126), where the assault loses its identity and is merged in the greater crime. Barton v. State, 58 Ga. App. 554 (199 SE 357) holds: “Under an indictment for assault with intent to rape, which so described the manner of the commission of the offense as to contain allegations essential to constitute the lesser offense of assault and battery, where the evidence will consistently support a verdict for either offense, it is reversible error for the trial judge, without request, to fail to charge to the jury the law with reference to the offense of assault and battery.” Here a stabbing is alleged in the indictment and is supported by evidence. It was error to fail to charge the jury that they might return a verdict for the lesser offense.
Judgment reversed.