The court did not err in overruling the motion for a new trial for any of the reasons assigned.
DECIDED APRIL 6, 1946. The defendant was indicted jointly with Alexander Walker and Walter Hutchinson Jr. for assault with intent to murder. Walter Hutchinson was first tried and appealed his case here. This court affirmed the conviction. See Hutchinson v. State, 73 Ga. App. 471 (37 S.E.2d 155). The defendant in the instant case filed his motion for a new trial on the general grounds, and afterwards added five special grounds. The court overruled the motion for a new trial. The defendant excepted. In theHutchinson case, the *Page 678 court did not state the facts to any great extent because such an aggravated case was made out that the court did not feel that setting out the facts would be of any service to anyone concerned. Since the attorney for the defendant in the instant case insists with much earnestness that the case should be reversed on the general as well as the special grounds, we will set out the facts more in detail.
The person assaulted was Claude G. Chandler. He was a white man sixty years of age, whose duty it was to haul the United States mail day and night from the post office in Athens, Georgia, to the incoming trains. In the discharge of his duties he went to the station in a Ford truck to meet trains. He unloaded his mail pouches near the colored waiting room. After meeting one train he was waiting for two other trains, one of which was due to arrive at 12:20 a. m. and the other at 4:30 the same night. After unloading his mail he looked into the colored waiting room and observed five or six negroes in three. He did not recognize any of them. They were standing about the waiting room. After he had observed the bulletin board with reference to the train, he walked back toward his truck and stopped at the baggage room, where his truck was parked near the colored waiting room. He stopped two or three steps from his truck. . . After unloading his mail bags for the next train, three negro boys (one of them the defendant) and two negro girls passed him. As they passed, Walter Hutchinson remarked: "He has got a hundred dollars on him. Let's kill the s.o.b." At that time Hutchinson was next to Chandler. Chandler thought that Hutchinson was talking about one of the other defendants. The three negro boys huddled for a moment, turned around and came back to Chandler. As they did this, Chandler returned to his truck, got in, and was preparing to leave. He made an effort to turn on the car switch. The three negroes came to the car. The defendant (Paul Smith) struck Chandler. Hutchinson grabbed Chandler while Walker cut Chandler. Chandler escaped from his car. When he did so, the three negroes ran. The defendant hit the victim four or five times. Hutchinson tore his shirt. Walker stated as he cut Chandler: "Kill the s.o.b. and we will get his money." The would was about eight inches long, and it was necessary to take fifty or sixty stitches to sew it up. There were several cuts on the person of Chandler. When the defendant Smith struck the first lick, he broke Chandler's glasses. *Page 679 Chandler had never seen any of the negroes before. His wounds were treated at the hospital that night. He was removed from the hospital the next day. There was other evidence for the State, not materially different from that above set out. This was testimony by the negro girls, who walked away as the negro boys turned to assault Chandler. From these witnesses it appeared that the defendants were "pretty drunk."
The defendant here denied cutting Chandler or knowing anything about it. The testimony of his two confederates, Hutchinson and Walker, was introduced in his behalf. When their evidence is considered as a whole, it showed no excuse for the attack. 1. As to the general grounds, the defendant's attorney argues that there is no evidence to show concerted action on the part of the three defendants. The evidence, which we have set out, so completely refutes this contention that we feel that it would be of no benefit to comment on it further. There is no merit in this contention.
2. Special grounds 1 and 2 are but enlargements of the general grounds, in that they allege a failure of the evidence to show that the defendant, Hutchinson, and Walker acted with a common intent and purpose in the attack made upon Chandler; and also the failure of the evidence to disclose any malice. As to these contentions, under the evidence in behalf of the State which we have set forth, these grounds are without merit.
3. Special grounds 3 and 4 assign error because the solicitor-general stated in his argument that the punishment provided for a principal in the second degree was the same as that provided for a principal in the first degree. The law so provides. We can see no reversible error in this statement. It nowhere appears in the record that the solicitor-general argued that the defendant should receive the same punishment that Hutchinson, who did the actual cutting, had received. The trial judge made it clear that it was a jury question as to the degree of punishment which this defendant should receive. The solicitor-general said, when the question arose upon objections of the defendant's counsel to the solicitor's statement, that he, the solicitor, did not state and did not intend to state the degree of punishment which the jury should impose on the *Page 680 defendant in the event they should find the defendant guilty, but that such question was exclusively for the jury.
4. Under the facts of this case, the court did not commit reversible error in failing to charge the offense of assault and battery.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.