Wilkie was indicted for aggravated assault against Lanny Robert Logan. Wilkie waived arraignment and pled not guilty, and after a mistrial in December, 1977, was tried and convicted in March, 1979. Wilkie appeals and enumerates twelve errors of law below. Held:
1. Enumerations of Error 1, 3, 5, and 6 are abandoned by appellant, for failure to support by argument or citation of authority. Rule 15 (c) (2), Court of Appeals; Code Ann. § 24-3615 (c)
(2); Kiriaze v. State,
2. In Enumeration 2, appellant contends the trial court erred in permitting the use of a portion of the transcript of the prior trial, because the transcript was not certified by the judge who had presided at the prior trial and because appellant never agreed to its authenticity. At trial, the evidence was denied admission at appellant’s request, and the jury was instructed to disregard it. No motion for mistrial was made on the basis of prejudicial error. Appellant has not alleged or argued that the testimony itself was harmful or prejudicial to his case or that the court’s effort to remove it from the jury’s consideration was insufficient; but if it had been, it was the áppellant’s duty to move for mistrial.
Bennett v. State,
3. Appellant urges that a witness for the state was not properly qualified as expert, because the state never established that the witness was a licensed physician or a member of any medical society or association. The witness did testify as to his medical education and professional experience as a surgeon performing approximately 16,000 operations. Over objection, the trial court ruled him qualified as an expert; the appellant never took the witness on voir dire, or cross examined him as to expert qualification, although the trial court specifically gave him that opportunity. The question of qualification as expert witness is one of discretion with the trial court judge (Code § 38-1601;
Johnson v. State,
4. As to enumeration of error no. 5, appellant argues, without supporting authority, that the trial court erred in
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permitting over objection a reference by the state in closing argument to a "locking device” on a certain knife which had been identified but not formally offered for admission into evidence, which reference implied that the victim could not have used the knife although he had testified that he had it in his hand. The trial court did not err in permitting the reference. Both attorneys handled the knife in the presence of the jury; appellant’s attorney opened and closed it several times duringdiis examination of the witness; and during his closing argument, he referred to the knife and waved it about while commenting that it might have cut the appellant’s entrails out. It is not a proper objection that the knife had not been formally introduced and admitted, because obviously the appellant considered it part of the evidence, and used it as such, and the trial judge specifically stated that he considered it part of the evidence.
Clayton v. State,
5. Error is ascribed to the charge: "The acts of a person of sound mind and discretion are presumed to be the product of the person’s will and he is presumed to intend the natural and probable consequences of his acts, but these presumptions or a fact [sic] may be rebutted by other facts, circumstances, conduct, statements, demeanor, motive or evidence before you.”
The judge immediately thereafter charged: "A person will not be presumed to act with criminal
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intention, but the trier of the facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”
Skrine v. State,
6. Appellant urges that the trial court’s charge on good character is not a sound principle of law and was harmful and prejudicial to the appellant. The court charged "good character may constitute a substantive defense and may create a reasonable doubt of the guilt of the accused... However, proof of good character does not mean that you should acquit the defendant... if you find the state has proven the defendant guilty beyond a reasonable doubt...” We find no harmful error. If guilt is proven beyond a reasonable doubt, then conviction is authorized regardless of the defendant’s good character and hence the latter statement in the charge is a correct proposition of law. See
Sheffield v. State,
7. It is contended that the trial court erred in its recharge on aggravated assault, defense to a crime, and intent; by failing to also recharge all elements of defense including accident, misfortune, and not guilty; and by failing to charge the elements of assault. Neither argument nor citation of law is offered to support any of these contentions except the court’s failure to charge simple assault in the recharge, and therefore the remainder of the enumeration is abandoned (Division 1, supra). Appellant offers no legal authority but argues only that the failure to explain simple assault to the jury created an inference that the offense of assault had been proved by the state, and left a void as to what constitutes an assault. The evidence in the case is undisputed that appellant used a .22 caliber gun and the shot wounded the victim in'the heart; therefore, there was no question of simple assault in the case. It is said in
Smith v. State,
8. Appellant urges that the trial court’s failure to charge as to misfortune or accident (a lawful act done in a lawful manner) was error. The appellant admitted that he fired a warning shot which ricocheted off the ground and hit the victim. Though we do not concede that the failure to give the charge was error (see
Moody v. State,
9. Nor was it error to refuse to charge: "Proof of violent and turbulent character is admissible only when it is shown prima facie that the victim was the assailant and ... the defendant was honestly seeking to defend himself ... The testimony of the defendant that the victim was the aggressor at the time he shot him was sufficient to permit evidence of the violent and turbulent character of the victim.” Besides seeking to advise the jury of technical evidentiary rules which form no basis for their consideration, the requested charge in effect instructs the jury that the defendant had shown prima facie that he was honestly seeking to defend himself. Such instruction would be argumentative and would invade the province of the jury; therefore, it would have been highly improper to give it.
Judgment affirmed.