
    17694.
    LAWHORN v. THE STATE.
    The evidence as to the homicide, for which the plaintiff in error and another were Jointly indicted, authorized the verdict finding the former guilty of assault with intent to murder.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Homicide, 30 C. J. p. 28, n. 85 New.
    Decided December 14, 1926.
    Assault with intent to murder; from Early superior court-judge Yeomans. October 4, 1926.
    
      W. I. Geer, for plaintiff in error.
    
      B. T. Gastellow, solicitor-general, R. R. Arnold, E. C. Hill, contra.
   Luke, J.

Robert Lawhorn and John Lawhorn were jointly indicted for the offense of murder. - They severed. John Lawhorn was convicted of the offense of assault with intent to murder. Upon the grounds of his motion for a new trial one of his contentions is that he should not -have been convicted, because the deceased had already received a mortal blow before he struck him with a piece of scantling, and therefore his conviction was for striking, as he terms it, the dead man. There were other assignments of error in his motion for a new trial. The jury were authorized to convict the defendant, and none of the grounds of his motion for a new trial show harmful error. Indeed the testimony shows that the defendant was still living at the time this defendant struck him twice, once in the mouth and once on the face, and did live some little time afterwards. This defendant will not be heard to say that the lick which the deceased had received from the hand of his brother was sufficient to kill him, and that his striking of the deceased was not a criminal act. Qne of the witnesses testified that this defendant stated that it was his purpose and intent to kill, and he would have inflicted other blows upon the struggling deceased if he had not been prevented by bystanders. The defendant has had a legal trial, and the court properly denied him a new trial.

Judgment affirmed.

Broyles. C. J., concurs. Bloodworth, J., absent on account of illness.  