The indictment, in charging the defendant with the offense of assault with intent to murder, stated that he, "with a certain pocketknife or other sharp instrument, the same being a weapon likely to produce death," did unlawfully cut, stab, and wound Waco Sanders, with the intent to kill and murder him. The defendant filed a special demurrer alleging that, since the indictment charged the assault was made "with a certain pocketknife or other sharp instrument," the charge was in the alternative, and the indictment was fatally defective. The demurrer was overruled, and that judgment was excepted to. The case then proceeded to a verdict and judgment of stabbing. A motion for a new trial, embracing the general grounds only, was denied and that judgment is assigned as error.
Assuming that the overruling of the demurrer was error, I think that, under numerous decisions of the Supreme Court and this court, the error was harmless and does not require another trial. It is well settled that the erroneous overruling of a special demurrer is not harmful error where it affirmatively appears from the evidence in the case that the error did not result in injury to the party interposing the demurrer; and in determining whether the error has resulted in injury, the court may look to the record as a whole. Hall v. State, 8 Ga. App. 747,752 (70 S.E. 211); Coffee County v. Denton,64 Ga. App. 368, 372 (13 S.E.2d 209); Brown v. State,67 Ga. App. 550, 553 (21 S.E.2d 268); Scott v. Holden,69 Ga. App. 615, 617 (26 S.E.2d 456).
In Atlanta Coach Company v. Cobb, 178 Ga. 544, 551 (174 S.E. 131), the Supreme Court said: "This court has several times stated that in order to reverse a judgment both error and injury must affirmatively appear." And the court in that connection *Page 807 cited with approval the decision of this court in the Hall case, supra. It is true that in Chappell v. State, 58 Ga. App. 450 (198 S.E. 791), it was stated: "This court . . in passing on a demurrer to an indictment can consider only the indictment and the demurrer. We can not refer to the brief of the evidence, the charge of the court, or any other part of the record." However, in that case, MacIntyre, J., said: "I concur in the judgment, but think that, after a verdict has been rendered, there are some exceptions to the rule stated in the majority opinion that in passing on a demurrer to an indictment this court can not refer to the brief of the evidence. See Hall v.State, 8 Ga. App. 747, 752 (70 S.E. 211)." Judge MacIntyre was right; and, thereafter, this court, in Coffee County v.Denton, supra, held that if there were any conflict between the ruling in the Hall case and that in the Chappell case, the ruling in the older Hall case must be followed. On the trial in the instant case, the undisputed evidence (not even contradicted by the defendant in his statement to the jury) showed that a knife, and a knife only, was the instrument used by the defendant in his assault upon the person named in the indictment. It thus clearly appears that the overruling of the special demurrer was not injurious to the cause of the defendant. Moreover, the evidence amply authorized, if it did not demand, the verdict returned, and the motion for a new trial contained the general grounds only. The grant of a new trial in this case could not legally result in any other verdict than that rendered by the jury and would be a vain gesture. Henderson v. State,113 Ga. 1148, supra, is distinguished from the above-cited cases in that it does not appear in the Henderson case that, subsequent to the overruling of the demurrer to the accusation, the case proceeded to a verdict against the accused. Moreover, in that case, Lewis, J., dissented. In my opinion the judgment should be affirmed.