Whether the defendant was guilty of assault with intent to murder, or of stabbing, depends on whether the evidence established that he was motivated by malice or by passion. That he could have been convicted under the evidence of an assault with intent to murder is immaterial, where the evidence, as here, justified or authorized the jury in finding him guilty of the minor offense of stabbing.
DECIDED OCTOBER 15, 1943. The defendant was indicted for an assault with intent to murder, and was found guilty of stabbing. His wife testified, in part, as follows: "We had been separated three months. He cut me on Sunday. I was going down the road. Me and my sister had gone to the cafe; we had been and come back. Got down to my daddy's, and he come and met us and says, `Where has you all been?' I says, `We have been up there with Daddy.' We walked down the road. After while Paul comes up, and talks to me and says, `Is you going home with me?' I told him, `No.' He told me, `You mean you ain't going to live with me any more?' I says, `No, you already got a woman, living with her; what you want with me?' He said he ought to take me out there in them damn woods and kill me. He was standing side of the road. Somebody in the car asked him what about some money he owed him. Paul *Page 56 said he wasn't going to give him a damn thing. He walked out in the road and kept complaining. I told him I was going back home. He hauled off and hit me and knocked me down in the ditch. By that time he had his hand wound up in my hair and I holloed and says, `Don't you all let him kill me!' By that time Ruth and Earl Hall come up there and pulled him off of me. He then broke and run. No one hit him or cut him. It was at night. I lived at my daddy's and was going towards home. He knocked me over in the ditch, and was down over me cutting me with the razor; he cut me on the head and on my arm. He took my scalp off; it was deep and flopped over my face; forty-five stitches were taken in my head. He had passed the house the week before, and I was sitting on the porch, and he said he was going to kill me if it was the last thing he did."
That the defendant could have been convicted, under the evidence, of an assault with intent to murder is immaterial where the evidence, as here, authorized the jury to find him guilty of the minor offense of stabbing. Haney v. State, 64 Ga. App. 396,399 (13 S.E.2d 384); Collins v. State, 66 Ga. App. 325,328 (18 S.E.2d 24). The testimony of the wife alone was sufficient to authorize the verdict of stabbing; and the fact that other witnesses for the State seemingly or actually contradicted the wife in material or immaterial respects, the jury having nevertheless believed her, and her testimony being sufficient, if true, to authorize a conviction, there was no abuse of discretion in denying a new trial. Welch v. State,59 Ga. App. 351 (200 S.E. 806); Davis v. State, 94 Ga. 399 (19 S.E. 243); Beecher v. State, 58 Ga. App. 18 (197 S.E. 329); Puckett v. State, 159 Ga. 230 (125 S.E. 208);Clemons v. State, 159 Ga. 425 (125 S.E. 800); Aycock v.State, 62 Ga. App. 812 (10 S.E.2d 84).
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.