
    37535.
    SUMMERS v. THE STATE.
   Carlisle, Judge.

1. Where the defendant was charged with murder of his infant male, child by striking and beating him with his hands and fists, and by striking and beating him with a man’s leather belt, and by striking him and beating him with some blunt instrument ;which was to- the grand jurors unknown, inflicting upon the child mortal wounds from which he. died, such indictment included the offense of assault and battery (Lanier v. State, 50 Ga. App. 154, 155 (177 S. E. 270), and, where the evidence authorized the jury to find that the defendant had administered to- his infant child an unmerciful beating, it at least authorized a finding that the defendant was guilty of the offense of assault and battery. Waddell v. State, 29 Ga. App. 33 (2) (113 S. E. 94). A motion for a judgment notwithstanding the verdict may be made only after a proper and timely motion for a directed verdict has been made. Ga. L. 1957, pp. 224, 236. However, the trial judge in a criminal case may direct a verdict only where, after all the State’s evidence is in, a verdict of acquittal is the only legal finding possible. Bell v. State, 15 Ga. App. 718 (2) (84 S. E. 150).

Decided February 13, 1959

Rehearing denied February 25, 1959.

George G. Finch, Joe R. Edwards, for plaintiff in error.

Paul Webb, Solicitor-General, Carter Goode, Eugene L. Tiller, contra.

2. Accordingly, the record in this case showing at least that a verdict of assault and battery was authorized under the foregoing 'authorities, it was not error for the trial judge to refuse to direct a verdict and to thereafter deny the motion for a judgment non obstante veredicto. No question is presented on exceptions to the refusal of the judge to direct a verdict, or to grant a judgment non obstante veredicto as to the sufficiency of the evidence to sustain the verdict rendered, and this court does not have for its consideration any question as to whether the evidence authorized the particular verdict found in this case.

Judgment affirmed.

Gardner, P. J., and Townsend, J., concur.  