Appellant and his co-defendant were found guilty of robbery by force. OCGA § 16-8-40 (a) (1). Appellant now asserts as reversible error the trial court’s refusal to instruct the jury on the law of simple battery and the denial of his motion to sever his trial from that of his co-defendant.
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1. Appellant’s pre-trial motion for severance was based upon the prejudice he allegedly would suffer from the admission of evidence of prior similar transactions committed by his co-defendant. The grant or denial of a motion for severance lies within the sound discretion of the trial court, and its ruling will not be reversed absent a clear abuse of such discretion.
Stevens v. State,
2. On appeal, appellant maintains that the behavior of his co-defendant, who was acting as co-counsel in his own defense, so antagonized the jury as to render impossible appellant’s ability to obtain a fair trial. While the transcript of the voir dire reflects that several potential jurors were excused due to their professed inability to be impartial to appellant’s co-defendant, none of the members of the jury voiced such feelings. “The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with. [Cits.]”
Stanley v. State,
3. Appellant enumerates as error the trial court’s refusal to give his requested charge on simple battery. Appellant maintains that simple battery is an offense included in robbery by force and that the requested charge should have been given because several eyewitnesses testified that, while they saw appellant beating the victim, they did not see him take anything from the victim.
“ ‘The State or the accused may, by written application to the trial judge at or before the close of the evidence, request [a] charge on lesser crimes that are included in those set forth in the indictment or accusation, and [the] failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error.’ [Cit.]”
Bowers v. State, 177
Ga. App. 36 (1) (
A crime is included within another crime
as a matter of law
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.” OCGA § 16-1-6 (2);
State v. Estevez,
The indictment accused appellant of committing robbery by force. “ ‘Force implies actual personal violence, a struggle and a personal outrage.’ ”
Henderson v. State,
Judgment affirmed.