
    15786.
    BROOKING v. THE STATE.
    Under an indictment for assault and battery a conviction of a simple assault was unauthorized where the evidence demanded a finding that if any offense was committed it was that of a battery.
    Decided November 12, 1924.
    Assault; from Newton-superior court—Judge Hutcheson. June 14, 1924.
    
      Hugene Dickey, G. G. King, for plaintiff in error.
    
      Claude G. Smith, solicitor-general, contra.
   Bloodworth, J.

In Kennedy v. State, 10 Ga. App. 794 (74 S. E. 95), this court, citing a number of cases to support the proposition, held: “The accused having been indicted for the offense of assault and battery, and the evidence demanding a finding that if any offense at all was committed, it was that of .an unlawful battery, there could be no conviction of simple assault.” See Penal Code (1910), § 19; Harris v. State, 3 Ga. App. 457 (60 S. E. 127); Carter v. State, 7 Ga. App. 44 (1) (65 S. E. 1072); Fronebarger v. State, 27 Ga. App. 607 (109 S. E. 512).

This case is controlled by the rulings in the foregoing cases, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Lulce, J., concur.  