Smith v. The State., 127 Ga. App. 468, 193 S.E.2d 921 (1972)
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Summary
Judgment affirmed. Eberhardt, P. J., and Deen, J., concur.
Summary
Judgment affirmed. Eberhardt, P. J., and Deen, J., concur.
Text
Gower & McGuigan, John McGuigan, for appellant.
Following a conviction for aggravated assault under Criminal Code of Georgia 26-1302 for which he received the maximum sentence of 10 years appellant seeks a reversal on the ground that it was incumbent upon the trial court to include in the jury charge without request the lesser offenses of simple assault (Criminal Code of Ga. 26-1301) and simple battery (Criminal Code of Ga. 26-1304).
Appellant was also charged with two misdemeanors, namely, carrying a pistol without a license and carrying a concealed weapon. He was found guilty of possessing a pistol without a license and not guilty of the other misdemeanor.
The indictment accused defendant of the felony of aggravated assault "by shooting at. and towards her with a pistol, by striking and beating her with his hands and fists, and by kicking her in the stomach with his feet; the said pistol, hands and fists, and feet being deadly weapons when used in the manner which accused used them in said assault." The State's evidence was sufficient to prove this crime as charged.
The accused under oath denied possession of a pistol and asserted that he did not beat the prosecutrix but used only such force as was necessary for self defense.
Appellant's counsel argues that this case falls within the ambit of Banks v. State,
Where, as here, the State's evidence warrants a conviction only on the greater offense or acquittal on the basis of the evidence presented by the accused, there is no error in failing without request to charge a lesser offense. Craighead v. State,
Lewis R. Slaton, District Attorney, Joel M. Feldman, William M. Weller, Morris H. Rosenberg, for appellee.
1972
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This document cites
- Supreme Court of Georgia - HILL v. THE STATE., 229 Ga. 307, 191 S.E.2.d 58 (1972)
- Supreme Court of Georgia - WATSON v. THE STATE., 229 Ga. 573, 192 S.E.2.d 897 (1972)
- Supreme Court of Georgia - WHEELER v. THE STATE., 229 Ga. 617, 193 S.E.2.d 814 (1972)
- Supreme Court of Georgia - FISHER v. THE STATE., 228 Ga. 100, 184 S.E.2.d 156 (1971)
- Supreme Court of Georgia - SMITH v. THE STATE., 228 Ga. 293, 185 S.E.2.d 381 (1971)
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