Knight v. State
378 S.E.2d 373
Ga. Ct. App.
1989
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KNIGHT v. THE STATE.

77577

Court of Appeals of Georgia

DECIDED JANUARY 30, 1989.

190 Ga. App. 87 | 378 SE2d 373

BANKE, Presiding Judge.

script for the purpose of impeaching Carl Jones, Margaret Tosh, Darlene Jones, and Cecil Jones. The men were involved in the burglary. Tosh, who was Harris’ mother-in-law and Gann‘s sister-in-law, was at the Harris house. Darlene Jones, Carl‘s wife, was at Gann‘s trailer the entire day. Defendant did elicit from Carl Jones an admission that he made a prior inconsistent statement “at one time,” but it was not asked whether this was prior testimony or under oath or when. At any rate, if it occurred in the first trial, the transcript would not have proved more than Carl Jones admitted.

As to Cecil Jones, defendant elicited an admission that he had lied during his guilty plea proceeding. Thus the mistrial transcript was irrelevant. As to Margaret Tosh, he contends that she did not see Gann go into the victim‘s house or come back with anything or even go across the road. She admitted these facts. Appellant does not contend that she testified otherwise in the mistrial. As to Darlene Jones, appellant asserts that he wanted to show a bias because Carl was her husband. He did so, by his cross-examination.

Appellant fails to point to any material testimony, even in a general way, which could have been impeached by use of the mistrial transcript. Nor does he point to any other unmet need which would have been fulfilled by the transcript. At any time during the trial, except as stated above, did he suggest that prior testimony was different or that he needed the mistrial transcript because of what was stated at the trial in progress.

Where no harm is shown, there is no reversible error. See, e.g.,

;
.

Having so ruled, the errors enumerated regarding denial of the motion for a continuance for preparation of the transcript and the denial of that transcript for the purpose of this appeal are moot.

Judgment affirmed. Banke, P. J., and Birdsong, J., concur.

DECIDED JANUARY 30, 1989.

Bennett & Hamilton, Hubert E. Hamilton III, for appellant.

David L. Lomenick, Jr., District Attorney, for appellee.

BANKE, Presiding Judge.

The appellant was sentenced to consecutive prison terms for armed robbery, burglary, rape, aggravated battery, and aggravated assault. On appeal, he contends that the evidence did not authorize the armed robbery conviction and that the aggravated battery and aggravated assault convictions should have been merged because those offenses were established by the same conduct. Held:

1. The evidence was amply sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of armed robbery. See generally

.

2. The aggravated assault count of the indictment alleged that the appellant had assaulted the victim with a knife. See generally OCGA § 16-5-21 (a) (2). The aggravated battery count alleged that he had caused bodily harm to the victim “by seriously disfiguring her body by causing scars to her neck. . . .” See generally OCGA § 16-5-24 (a). If these counts were based on the “same conduct,” it is clear that the aggravated assault would be included in the aggravated battery. See OCGA § 16-1-7. See also OCGA § 16-1-6;

. However, the evidence showed that the appellant stabbed the victim with the knife “a dozen or so” times, transecting her larynx and esophagus and causing extensive scarring of her throat and breast. “Although occurring sequentially, one after the other, each of these transactions constituted a separate offense since each was established by proof of different facts; i.e., each offense was a completed crime when the next was perpetrated upon the victim. (Cits.)”
. Thus, the evidence in this case does not demonstrate that the aggravated assault and the aggravated battery were based on the “same conduct” within the contemplation of OCGA § 16-1-7, with the result that the separate convictions for these offenses may stand. Accord
, aff‘d
. Compare
.

Judgment affirmed. Birdsong, J., concurs. Beasley, J., concurs specially.

BEASLEY, Judge, concurring specially.

I fully concur in Division 1 but concur in the judgment only, with respect to Division 2.

I find no case where multiple stab wounds, inflicted sequentially and without interruption, constitute separate crimes. However, considering the indictment, the proof, and the verdict in this case, what we have is that one series of stabbings, unbroken by any other act of defendant, is regarded as two acts, one being the initial assault or all of the assaults which did not result in scarring to the neck, and the other being the several stabbings resulting in scars to the neck.

Although I have a hard time viewing these multiple stabs as two separate and independent crimes, I concede that it is analytically pos-sible and so concur in the judgment. I do not believe, however, that we should open the door to multiple counts for each stab, which I read the opinion as doing.

This case is close to, but differs from,

, where “[t]he facts adduced to support the aggravated assault charge, as it was set forth in the indictment, were the same facts used to support the aggravated battery charge, as it was set forth in the indictment, . . .” The indictment against Knight alleged different facts as to each count. Likewise in
, where both charges referred to the same ultimately proved facts. In
, it was the “language of the indictment . . .” which governed the outcome. Unlike the Knight indictment, one count in Mathis was “plainly sufficient to include [both offenses].” The wording of the indictment is not set out in
, although the Court held that a merger occurred. This results when, unlike here, what is alleged in one count, matched with what is proved, covers both counts.

DECIDED JANUARY 30, 1989.

Andrews & Seery, Stephen H. Andrews, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.