*1 Aрril Argued January 1978. Eisner, A. Gray, appellant. Scheer William for & Hickman, Mellen, Bracey, A. McClain, & 0. Bowling III, Culbreth, James W. TUGGLE v. THE
55213. et al. STATE. Judge. Webb, (1) presents This Is the crime of two questions: crime included (with (2) deadly weapon)? Dо of the all the allegations indictments here contain battery? essential averments of the If both crime of these in the we questions answered must negаtive, reverse these convictions had under deadly weapons since defendants convicted not of assault with weapons after the court over objection.
1. "An be included convicted of a crime in a indictment, or information (a) accusation. A crime is so included It when: established рroof same less than all the facts or culpable less mental state than is establish required to (b) commission the crime charged, or It differs from the сrime charged only respect that a less serious injury injury or risk of to person, the same property, public interest or a lesser kind of to culpability suffices establish its commission.” Criminal Code
"The rule general concerning offenses be: 'To warrant conviction a lesser offense on an indictment information charging greater offense, essential
describing greater contain all essential offense averments relating to the lesser offense or that greater offense include all ” ingredients of the Ga. App. Gearin lesser.’ (a) attempt is defined as either another, injury a violent
cоmmit apprehension act in reasonable places which another immediately injury. a violent receiving *2 it is 26-1301. An assault becomes when murder, raрe, either with intent rob or perpetrated § a Criminal 26-1302. deadly weapon. use of Code Thus, a is "Aggravated when a is committed means completed simple assault State, 141 Scott v. Ga. 849 deadly weapon,” App. (234 685) (1977), and neither of assault type SE2d contact with the victim. requires physical hand, on the thаt Simple battery, requires other intentionally make contact of an person nature with the of another Criminal cause to another. § every battery 26-1304. It will thus be seen that assault, but an includes which is (Scott State, 848, 849, App. Ga. attempted battery way and not the other around. contact is supra), for а but not for required assault, and hence the crime of assault.
2. A more difficult question language the indictments is sufficient encompass actual contаct or harm as required by statute, the battery 26-1304, Criminal Code so as to authorize convictions for that They allege defendants "did make an upon pеrson of [one a certain with and "did weapon,” victim] make an [the victim] fists, deadly weapons.” problem
The is with the word "assault.” There is no if it difficulty is understoоd in its nontechnical meaning means, as "a violent onset or attack with (2d Ed.). blows.” Webster’s New International Dictionary But we do not feel free to so сontrue it because term "[t]he State, art,” 'assault’ word of Smith v. legal 143) 395, 396 (1976), SE2d and as it §§ encompass 26-1301 —26-1303 does not battery, 26-1304, §§ which is separately dealt with reach might We different result further and gone alleged indictments the aggravated assaults were committed "by striking beating” (Williams (3) (240 890) (1977)), "the grand specifically alleged that 'did mаke an unlawfully fists, of [the with their victim] likely which were used such a manner as to be to cause death or Clarke v. great bodily injury.” But some such language absent we cannot wring "battery” from "assault.”
While
suggested
occur,
shown that a battery actually did
the question is
not what
the evidence showed but what
the indictments
(or
alleged
since,
failed to allege)
to the rule in
civil
(b)),
cases
Ann.
81A-115
are not
deemed amended to
Gentry
conform to the evidence.
39)
(1940).
633) (1972) as it was so obiter clearly dictum. Bell, J., Deen,
Judgment J., Quillian, reversed. C. P. J., P. JJ., Smith and Birdsong, concur. McMurray, Banke, JJ., dissent. February
Submitted April 6, 1978.
Maylon London, K. for appellants. Whitmer, District H. Wayne, Attorney, James
JeffC. Assistant District Attorney, Judge, dissenting.
McMurray, Defendants indicted the offense aggravated one John Lunsford with a a deadly They were likewise weapon. indicted for the offense of one fists, also with a certain
Judd Grizzle held, and trial was "deadly weapons.” joint as described them, guilty to each charge, found jury the each 12 months Each was to serve battery. run 12 months conviction, sentence of the second the sentence. consecutively to first here, on but We have no notwithstanding trial and judgment mоtion for new denied, of fact and findings the trial court verdict which trial court made. Therein the conclusions of law were the court not requested stated defense counsel and that "simple battery” request on charge the court did timely was filed the two cases. a lesser included offense the law as to charge as verdict battery. prior sentencing After to review and reconcile the verdict defendants moved void, and repugnant, improper contending Notwithstanding to the indicted crimes. this motion defendant entered a and sentence on each court law both of which on each conviction. its conclusions of same, virtually the trial court held that the in an is a lesser included offense instance, did aggravated assault cаse and the court giving not commit error the verdict of the the defendants approving jury finding guilty Error is enumerated here to these conclusions.
The majоrity here hold that an weapon does not contact as require physical is the case "hence the crime in the crime of Further, assault.” thеy hold did here not contain all *4 averments of the the result of As opinion majority reverses.
I my do not to the learned agree expressed by views I аssociates nor do of reversal. agree First, transcript the record here does not contain a Indeed, the evidence and at the trial. proceedings not such notice of does not disclose whether or course, exists. Of defendants were transcript of a misdemeanor. Without fеlony convicted way what evidence was knowing we have no in the case. knife, Second, an a knife with a hands been and fists there could have necessarily discloses victim. Under the considerable contact with the 26-1304), simple battery "[a] (a) intentionally when he either commits makes na- contact of ture with of another or causes contact very another.” could well have been under present the averments indictments. 633), that in this court recognized
with a shoe-clad foot simple battery was lesser offense aggravated assault. Davis 297), in which the defendant was with the offense of certain pistol, shows struck repeatedly about head him knocking to the ground into an unconscious or semicomatose condition. The defendant denied any attack. This court there held that the lesser offense of not in issue so toas require instructions since that offense was not "reasonably еvidence,” raised earlier citing two Supreme Court cases both occurring before the new Criminal Code. a weapon Whether is a question рroperly for jury Quarles determination. See App. 756, 467), being the test manner means of use and the inflicted. wounds
In my opinion, evidence here could shоwn contact the use of a fists; and the jury could have determined the manner and means of as well injuries inflicted, use as the any, than touching. The would have been authorized consider awas offense.
For all the dissent, I foregoing respectfully reasons I would affirm the judgment.
I am authorized Judge to state that Judge join Banke in this dissent.