Lead Opinion
Appellant was tried before a jury on an indictment which charged him with three counts of aggravated assault. The jury returned guilty verdicts as to two of the three counts. The trial court entered judgments of conviction and sentences on the guilty verdicts. Appellant appeals from the denial of his motion for new trial.
1. The general grounds are raised in several of appellant’s enumerations of error. “The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight. [Cit.] We find that a rational trier of fact could find from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia,
2. Appellant filed a pretrial demurrer to the indictment, assert-
3. The trial court did not err when it delegated to the assistant district attorney the responsibility for propounding to the jury the statutory questions provided in OCGA § 15-12-164. See Hicks v. State,
4. The denial of appellant’s motion that a prospective juror be stricken from the jury panel for cause is enumerated as error. We note at the outset that, although the State urges that appellant’s failure to have exhausted his peremptory strikes is dispositive of this enumeration, it is clear that this will no longer serve to “render the error[, if any,] harmless.” Harris v. State,
The prospective juror was challenged on the ground that he was related to one of the victims within the prohibited degree. See OCGA § 15-12-163 (b) (4). The prospective juror’s brother was the step-father of the victim and, thus, the prospective juror was the step-uncle of the victim. Accordingly, the victim and the brother of the prospective juror were certainly related but the victim and the prospective juror himself were not related within any degree. See generally Central R. & Banking Co. v. Roberts,
5. After the rule of sequestration had been invoked, the investigating officer was allowed, over appellant’s objection, to remain in the courtroom but was not required to testify first. There was no error. See Davis v. State,
6. During the cross-examination of a witness for the State, appellant introduced an exhibit into evidence. At the conclusion of the State’s case, appellant rested without calling any witnesses or introducing any evidence in his own behalf. The trial court correctly held that, under these circumstances, the State had the right to open and
7. Several of appellant’s enumerations of error concern the trial court’s jury charge.
The refusal to give appellant’s requested charge on reckless conduct as a lesser included offense is enumerated as error. There is, however, no construction of the evidence which would authorize a finding that appellant, in stabbing the victims, had committed the crime of reckless conduct. Compare Bowers v. State,
Likewise, it was not error to refuse to give the following requested charge: “Mere presence at the scene of the crime, even when coupled with flight from authority, without more, is not sufficient for conviction.” See Lofton v. State,
Since the trial court’s charge did include a correct instruction on the credibility and impeachment of witnesses, it was not error to refuse to give the charge that appellant had requested on that issue. See generally Williams v. State,
Based upon an asserted “gap in time” between the trial court’s giving of a general charge on intent and its giving of a charge on aggravated assault, appellant urges that the jury may have erroneously inferred that his mere act of causing injury to the victims, regardless of his intent, was sufficient to find him guilty. As against this assertion, Cade v. State,
8. Several of appellant’s enumerations of error relate to the trial court’s consideration, during the sentencing hearing, of a prior conviction of appellant.
Receipt by appellant’s counsel, prior to jury selection, of notice of the State’s intent to use the prior conviction in aggravation of any sentences imposed in this case was timely notice pursuant to OCGA § 17-10-2. See generally Cobb v. State,
9. Appellant was convicted of committing an aggravated assault upon two separate individuals. Accordingly, the trial court did not err in imposing two sentences rather than one. See generally Satterfield v. State,
10. When, in the sentencing hearing, the trial court indicated that it was considering restitution as an element of the sentences that it would impose, appellant requested that “there be a fact finding . . . that he could pay it. . . .” Despite appellant’s request, no such “fact finding” was ever made by the trial court. As to Count I of the indictment, appellant was sentenced to twenty years. As to Count II, appellant was given a consecutive sentence of ten years on probation, conditioned upon his payment of a fine and restitution of the unpaid medical bills of the victim. Appellant enumerates the trial court’s imposition of the conditionally-probated sentence on Count II as erroneous for failure to conduct a hearing in accordance with Bearden v. Georgia,
OCGA § 17-10-8 authorizes the imposition of a fine as a condition of a probated sentence for a felony conviction. Likewise, OCGA § 17-14-3 authorizes the payment of restitution as a condition of the probation of a sentence imposed against an adult criminal defendant. Pursuant to the mandate of Bearden v. Georgia, supra, however, “where payment of a fine [or restitution] is made a condition precedent to probation, a defendant’s probation may not be revoked or withheld because of his failure to pay the fine [or restitution] without a showing of wilfullness on his part or inadequacy of alternative punishments.” Massey v. Meadows,
Accordingly, appellant’s conditionally-probated sentence on Count II must be reversed and the case remanded with direction that appellant be resentenced on that count in accordance with Bearden and Gaither. Compare Ludden v. State,
11. Appellant’s remaining enumerations of error which are not otherwise addressed have been considered and found to be without merit.
12. The judgment of conviction and the sentence as to Count I are affirmed. The judgment of conviction as to Count II is affirmed. The sentence as to Count II is reversed and the case is remanded with direction for resentencing in accordance with Division 10 of this opinion.
Judgments of conviction affirmed.
Concurrence Opinion
concurring specially.
While concurring fully with the majority opinion, comments should be made on two cases cited and relied upon, to wit: Ludden v. State,
As to the former case of Ludden, one judge failed to agree with all that is said in this case. Therefore, its precedential value is in doubt. As to the latter cited case of Central R. & Banking Co., this is a landmark case written by Chief Justice Bleckley, speaking for the court, who expressed the point in that case well, stating in part, at 517:
“The groom and bride each comes within
The circle of the others kin;