Appellant was tried before a jury on an indictment which alleged that he had committed an aggravated assault, in that he “did unlawfully assault [the victim] with a deadly weapon, a gun, by shooting him. . . .” He was found guilty and appeals from the judgment of conviction and sentence entered on the guilty verdict. The sole enumeration of error is an assertion that the trial court erroneously refused to give a requested instruction on the misdemeanor offense of “reckless conduct,” OCGA § 16-5-60, as a possible alternative to aggravated assault as the crime for which appellant might be found guilty.
1. “The [S]tate or the accused may, by written application to the trial judge at or before the close of the evidence, request him to charge on lesser crimes that are
included in those set forth in the indictment or accusation,
and his failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error.” (Emphasis supplied.)
State v. Stonaker,
The indictment of appellant for aggravated assault was narrowly drawn in a single count and did not contain any additional language which would purport to constitute an alternative charge of the offense of reckless conduct. Compare
State v. Williams,
It appears never to have been previously determined “whether or not reckless conduct is a lesser included offense of aggravated assault. . . .” State v. Williams, supra at 203. Thus, the issue in the instant case is one of first impression.
“A ‘crime’ is a violation of a statute of this [S]tate in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1. Appellant was indicted for the offense of aggravated assault with a deadly weapon. OCGA § 16-5-21 (a) (2). Compare OCGA § 16-5-21 (a) (1). Such an assault is an intentional act. See
Riddle v. State,
The crime of “reckless conduct” is defined as follows: “A person who causes
bodily harm
to or endangers the bodily safety of another person by
consciously disregarding
a substantial and unjustifiable risk that his act or omission will cause the harm or endanger the safety of the other person and the disregard constitutes a gross devia
*38
tion from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.” (Emphasis supplied.) “[T]he reckless disregard of consequences, or a heedless indifference to the rights and safety of others, and a reasonable foresight that injury would probably result[,]” constitutes criminal negligence.
Cain v. State,
Therefore, unlike the offenses of armed robbery and assault and battery as in
Hightower,
supra, the crime for which appellant was indicted and the crime of reckless conduct are not necessarily “different” offenses. Both crimes proscribe the same general acts, to wit: either the subjection of another to the possibility of personal injury; or, the actual infliction of such an injury on the victim. The two crimes potentially differ only in one respect. In the case of aggravated assault with a deadly weapon, the attempted or the completed injury to the victim is the intended consequence of the defendant’s act. In the case of reckless conduct, the threatened or the actual injury to the victim is, instead, the product of the defendant’s criminal negligence. This
similarity
between the proscribed acts, coupled with a
dissimilarity
between the mental culpability which produces those acts, would indicate the potential for reckless conduct to be deemed, as a matter of law, a lesser included offense of aggravated assault with a deadly weapon. As a matter of law, a crime is “included” within the offense charged in an indictment if “[i]t differs from the crime charged
only
in the respect that a less serious injury or risk of injury to the same person, property, or public interest or
a lesser kind of culpability suffices to establish its commission.”
(Emphasis supplied.) OCGA § 16-1-6. See also
State v. Estevez,
In a given case, the potential correlation between the offenses of aggravated assault with a gun as the deadly weapon and reckless conduct is, therefore, not dissimilar to that which, for example, may exist between the crimes of murder and involuntary manslaughter. The “greater” crime may become the “lesser” offense, not necessarily by the adding or subtracting of elements, but merely by the substitution of another element for that of the formed intent to commit the same proscribed act. “[W]here the testimony of the defendant with regard to his intent, or where the surrounding circumstances were sufficient to authorize a jury to find a lack of intent to kill, the court should charge on the lesser offense of involuntary manslaughter — the other requisites of [OCGA § 16-5-3] (a) or (b) being present.”
Spradlin v. State,
2. Accordingly, we turn to the question of whether the evidence in the instant case authorized a charge on reckless conduct. Appellant did not deny that he fired the shot which struck the victim. He did, however, deny that he intended to shoot the victim. According to appellant, he was not even aware of the presence of the victim on a sailboat which was anchored in the river. In appellant’s version of the events, he was on a camping trip some miles into the woods, and after finishing a beer, he threw the empty bottle into the air for target practice. It was this shot which, according to appellant, struck the victim who was standing on the deck of his boat.
If the jury believed the entirety of appellant’s testimony, it would have been authorized to return a verdict of not guilty of any crime by reason of accident. However, “[i]t is also well settled that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited. [Cits.]”
Cobb v. State,
Judgment reversed.