158 Ga. App. 448 | Ga. Ct. App. | 1981
Zachery appeals from a conviction of assault, intent to rob. Held: 1. The jury was authorized to find beyond a reasonable doubt from the evidence that Zachery went to a Church’s Fried Chicken Restaurant on Bankhead Highway and told the take-out cashier to
The determination of fact and credibility is for the jury. On appeal of a conviction, the appellant is no longer entitled to a presumption of innocence, and this court looks only to determine whether a rational trier of fact could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The verdict in this case is authorized according to that standard, and is not subject to attack on the general grounds. The trial court did not err in denying a new trial.
2. The trial court did not err in refusing appellant’s motion for mistrial based on an impermissible question put to appellant concerning his post-arrest silence. After the appellant gave his version of the episode, the prosecutor asked: “When is the first time you ever told anybody that?” If this question was an impermissible reference to the defendant’s silence after arrest (see Doyle v. Ohio, 426 U. S. 610, 619 (96 SC 2240, 49 LE2d 91); Howard v. State, 237 Ga. 471, 473 (228 SE2d 860); Lowe v. State, 136 Ga. App. 631, 636 (222 SE2d 50)), it was not prejudicial or harmful. Smith v. State, 140 Ga. App. 385, 388, 389 (231 SE2d 83). Pursuit of the question was not permitted as being improper and the appellant did not answer the question; the question was ordered stricken from the record and the jury was instructed to cast it from their minds and draw no inference from it. The trial court expressly advised the jury that the defendant has a constitutional right to remain silent and that no inference may be drawn from any silence, nor could his silence be used against him. The error, if it was one, was therefore neither harmful nor prejudicial. Smith supra.
3. The trial court did not err in failing to charge the full definition of assault. It is not necessary to define or explain “assault” in charging “aggravated assault.” Bundren v. State, 155 Ga. App. 265, 266 (2) (270 SE2d 807). The appellant did not request such a charge. Moreover, there is no suggestion that appellant was entitled to the
4. Finally, we do not find that the appellant was denied his right to a thorough and sifting cross examination. The trial court merely restrained defense counsel from demanding to know which of the two sworn versions of the store clerk’s testimony she “would like the jury to believe.” This form of questioning was indeed argumentative and the trial judge was within his discretion to disapprove it. The appellant in fact was not denied a thorough cross examination, for the proper form of the intended question was finally admitted, and the witness answered it.
Judgment affirmed.