Defendant appeals the order overruling her motion for new trial after her conviction of two counts of aggravated assault, OCGA § 16-5-21. Error is assigned on the trial court’s failure to 1) re-charge the jury on accident, 2) charge simple assault as a lesser included offense of aggravated assault, and 3) instruct the jury that defendant’s statement was admissible solely to impeach him. Defendant also contends that the evidence was insufficient to convict.
1. While recognizing the trial court’s duty to respond to the jury’s request for further instructions,
Freeman v. State,
2. Assuming as does defendant that simple assault was a lesser included offense in this case, in the absence of a written request it was not error to fail to charge on that issue.
State v. Stonaker,
3. The next question is whether, as to portions of a voluntary custodial statement which are not introduced in the State’s case-in-chief but are used in rebuttal to impeach defendant’s trial testimony, the trial court must give a limiting instruction absent defendant’s request.
Defendant testified that the gun fell out of her purse, she and the victim tussled, and she did not know who pulled the trigger. According to a signed statement to the police several hours after the incident, defendant took the gun from her purse and she pulled the trigger as they were scuffling. When the State tried to impeach defendant with these recitations through police testimony on rebuttal per OCGA § 24-9-83, defendant objected and the court conducted a Jackson v. Denno 1 hearing and determined that the in-custody statement was voluntary and met Miranda v. Arizona 2 Fifth Amendment requirements. The evidence was then allowed, no instruction limiting its use to impeachment was requested or given, and in the jury charge the court instructed that evidence could be considered for any purpose once the jury found the statement to be voluntary.
Defendant did not object but on appeal claimed it was reversible error not to confine the jury’s use of the statement to impeachment and to allow it instead to constitute evidence of guilt as well. She cites no authority.
In
State v. Byrd,
Here, however, the statement was found by the trial court not to
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have been obtained in violation of defendant’s rights against self-incrimination. This has not been challenged. Thus the statement was not constitutionally inadmissible in the case-in-chief; it simply was not offered because, as the State saw it, it did not of itself tend to establish guilt. Since the statement was not required by the Constitution to be narrowed in use, the trial court was not required to volunteer a circumscription as it would be if the statement was otherwise inadmissible.
Harris v. New York,
Even if defendant may have been entitled to ask for a limitation as a matter of proper trial procedure, due to the fact it was offered during rebuttal and so should be confined to its rebuttal purpose, her failure to instruct the jury as to the limited purpose for which the evidence was offered was not error in the absence of a request.
Jones v. State,
4. Defendant contends that her conviction was unauthorized because the evidence failed to show an essential element of the offense, namely, that she intentionally fired the shots which injured the two victims, citing
Bowers v. State,
The following legal principles apply. “Every crime consists in the union or joint operation of act and intention. Sometimes the intention can be proved, sometimes it can only be inferred or presumed;
3
and the general rule laid down by our Code is, that the intention will be manifested by the circumstances connected with perpetration of the offense.”
Patterson v. State,
After an altercation with the first victim at a check-out counter in a grocery store, defendant returned with a pistol which she drew from her pocketbook and attempted to strike the first victim in the *137 head with it. The victim tried to take the pistol from defendant and they fought for possession of the weapon, rolling on the floor. During the course of the struggle the first victim was shot, as was the store manager who rushed to the scene to stop the fight. Defendant’s denial of knowledge as to the cause of the weapon’s discharge was contradicted by her prior statement to the police that she pulled the trigger.
Construing the evidence in favor of the verdict, the jury was authorized to find that defendant intended to assault the first victim with a deadly weapon and that in the course of that assault the second victim was injured. Similarly, the jury was also authorized to find the original intent was transferred in law to the second victim as well. Cook, supra. The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of the two charged crimes.
Daughtry v. State,
Judgment affirmed. Birdsong, C. J., and Banke, P. J., concur.