Banks v. State
| Decision Date | 04 January 1984 |
| Docket Number | No. 67447,67447 |
| Parties | BANKS v. The STATE. |
| Court | Georgia Court of Appeals |
John A. Pickens, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., and Joseph J. Drolet, Jerry W. Baxter and Richard E. Hicks, Asst. Dist. Attys., for appellee.
Defendant appeals his conviction of aggravated assault on a police officer in violation of OCGA § 16-5-21 (Code Ann. § 26-1302). Held:
1. Defendant was indicted for kidnapping his wife (count 1), and three counts of aggravated assault by striking with a ceramic statue. The wife was the alleged victim of count 2, a Mrs. Benton the victim of count 3, and the police officer the victim of count 4. The jury's verdict acquitted defendant of the kidnapping and assault on the wife and found him guilty but mentally ill of the lesser offense of simple assault on Mrs. Benton, and guilty but mentally ill of aggravated assault on the police officer. Before sentencing the state entered a nolle prosequi on count 3 and defendant was sentenced on count 4 only.
Defendant contends that the verdict of guilty of aggravated assault on the police officer was inconsistent with the verdicts of acquittal of counts 1 and 2, and the verdict of guilty but mentally ill of simple assault on Mrs. Benton.
We find no inconsistency between the acquittals and the conviction, as Frazier v. State, 152 Ga.App. 743(1), 264 S.E.2d 35.
Defendant argues that the guilty findings of simple assault on one victim and aggravated assault on the other by use of the same means, striking with the ceramic statue, is necessarily inconsistent because the same means could not be considered an offensive or deadly weapon as to one victim and not to the other. We do not agree.
A ceramic statue is not per se an offensive or deadly weapon, just as many other things are not. "The term offensive weapon as used in Code Ann. § 26-1902 [now OCGA § 16-8-41] includes not only weapons which are offensive per se (such as firearms loaded with live ammunition), but also other instrumentalities not normally considered to be offensive weapons per se which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use." Meminger v. State, 160 Ga.App. 509(2), 287 S.E.2d 296, reversed on other grounds 249 Ga. 561, 292 S.E.2d 681.
"[W]hether the instrument used constitutes a deadly (or offensive) weapon is properly for the jury's determination." Quarles v. State, 130 Ga.App. 756(2), 757, 204 S.E.2d 467.
From the evidence the jury could have found that the ceramic statue was not used against Mrs. Benton in a manner likely to produce death or great bodily injury, but was so used on the police officer. That being so there was no inconsistency between the verdicts on counts 3 and 4. Fullwood v. State, 128 Ga.App. 772(2), 773, 197 S.E.2d 858.
2. After the jury had deliberated for some time, the trial court apparently received an indication that the jury was divided on a verdict. The court called the jury into the court room and inquired what their numerical division was. The foreperson stated it was eleven to one. The court thereupon gave the Allen charge. The jury resumed deliberations for the remainder of that day, was recessed for the night and continued deliberations the following day until it arrived at a verdict.
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