Bissell v. State

• Decision Date: 10 April 1980
• Docket Number: No. 58886,58886
• Citation: 266 S.E.2d 238,153 Ga.App. 564
• Parties: BISSELL v. The STATE.
• Court: Georgia Court of Appeals

Page 238

266 S.E.2d 238

153 Ga.App. 564

BISSELL v.The STATE.

No. 58886.

Court of Appeals of Georgia.

Argued Nov. 6, 1979.

Decided Feb. 11, 1980.

Rehearing Denied Feb. 22, 1980.

Certiorari Denied April 10, 1980.

Margaret H. Thompson, Decatur, for appellant.

M. Randall Peek, Dist. Atty., Madeline S. Griffin, Robert F. Mumford, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Bissell was indicted and tried for aggravated assault with intent to rape.The jury returned a verdict finding him "guilty as charged."He appeals.

1.Bissell urges that the charge to the jury failed to include an instruction that an essential element of the crime charged was a "substantial step" toward the commission of the rape.Citing Riddle v. State, 145 Ga.App. 328, 243 S.E.2d 607(1978), he contends that the following charge, or its substance, should have been given: "In order to warrant a conviction against the Defendant on the offense of aggravated assault as charged in this case, the State must prove beyond a reasonable doubt that the Defendant had begun the perpetration of the crime of rape.Proof of a threat of rape or an act in preparation of that crime are insufficient."This argument is without merit.

The essential elements of the crime Bissell was charged with are: (1) An assault (as defined in Code Ann. § 26-1301) on the victim; and (2) aggravation of that assault by an intention to rape.Smith v. State, 140 Ga.App. 395, 231 S.E.2d 143(1976).Riddle merely states that since assault is an "attempted" battery, there must be a "substantial step" toward committing a battery before there can be an assault.Code Ann. § 26-1001.The "substantial step" requirement thus relates to the first essential element of Code Ann. § 26-1302, the assault, and not to the second element, the intent to rape.The crime of aggravated assault with intent to rape is complete when there is a "substantial step" toward a battery of the victim, i. e., an assault, coupled with an intent to rape.Cf.Leach v. State, 143 Ga.App. 598, 599(1), 239 S.E.2d 177(1977).If there is a substantial step toward the rape itself, the crime would then become attempted rape.Code Ann. § 26-1001;Code Ann. § 26-2001.The transcript here indicates that the trial court charged on simple assault, in the language of Code Ann. § 26-1301; on aggravated assault, in the language of Code Ann. § 26-1302; on intention, in the language of Code Ann. § 26-605; and on rape, in the language of Code Ann. § 26-2001.The jury was further charged that "the intent to commit the offense of rape is an essential element of the indictment, and the State is required to show this beyond a reasonable doubt."This was a proper and sufficient charge on the elements of the crime of aggravated assault with intent to rape.Smith v. State, 140 Ga.App. 395, 231 S.E.2d 143, supra;Powers v. State, 150 Ga.App. 25, 256 S.E.2d 637(1979).See alsoLedford v. State, 237 Ga. 628, 629(3), 229 S.E.2d 403(1976).The evidence here clearly shows Bissell made a "substantial step" toward committing a battery on the victim, i. e., assaulted her, and that with that assault there was a concurrence of his intent to rape her.Allen v. State, 142 Ga.App. 732, 237 S.E.2d 9(1977).CompareDorsey v. State, 108 Ga. 477, 34 S.E. 135(1899).The charge as given was full, fair and complete.There was no error.

2.The trial court instructed the jury on the form of their verdict if they should find Bissell guilty of aggravated assault with intent to rape.It also instructed as to the form of the verdict should Bissell be found not guilty.The trial court also instructed on the lesser included offense of simple assault, in the following manner: "(I)f after consideration of all the facts and circumstances and evidence in this case you do conclude that the defendant is not guilty of the offense of aggravated assault, the Court charges you that you may then consider whether or not the defendant is guilty of the lesser included offense of simple assault . . . Thus, although you find that the crime of aggravated assault with intent to commit rape has not been committed . . . as charged, you may find that a simple assault has occurred.A simple assault is committed when a person either, A, attempts to commit a violent injury to the person of another or, B, commits an act which places another in reasonable apprehension of immediately receiving a violent injury."(Emphasis supplied.)The court failed to specifically instruct as to the form of the verdict if the jury should find Bissell guilty of simple assault.On this basis Bissell urges that the verdict finding him "guilty as charged" is unclear and must be viewed as one for conviction of the lesser offense, assault, rather than the greater, aggravated assault.Presnell v. State, 241 Ga. 49, 51, 243 S.E.2d 496(1978), revd., on other grounds, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207, case on remand, 243 Ga. 131, 252 S.E.2d 625(1979).We find this argument to be unpersuasive.

While it is clearly the better practice to instruct the jury as to the form of their verdict if they should find the defendant guilty of a lesser included offense of that charged in the indictment (Hardrick v. State, 96 Ga.App. 670, 672(3), 101 S.E.2d 99(1957)), construing the entire charge in the instant case, especially that portion above quoted, we deem it sufficient to instruct the jury as to the elements of the lesser included crime of assault, as to the jury's duty to consider its application to the facts and as to their obligation in the event Bissell were found guilty of that offense.Cf.Yancy v. State, 173 Ga. 685, 686(2), 160 S.E. 867(1931);Germany v. State, 235 Ga. 836, 844(5), 221 S.E.2d 817(1976).This being so, the question becomes merely whether a verdict of "guilty as charged" returned on an indictment for aggravated assault with intent to rape, construed in the light of the issues actually submitted to the jury under the instructions of the court, is a verdict of guilty of the greater offense.Code Ann. § 27-2301;Henson v. Scoggins, 203 Ga. 540, 541(2), 47 S.E.2d 643(1948).In the portion of the jury instructions quoted above, the trial court told the jury that, although they found that the crime of aggravated assault with intent to rape had not been committed "as charged,"they could find that a simple assault had occurred.Clearly, the jury was given mutually exclusive choices: Appellant was not guilty, was guilty of simple assault, or was guilty of aggravated assault with intent to rape, as charged.The jury's verdict parroted the language the trial court associated with a verdict of guilty of aggravated assault.We are of the opinion that the verdict here was that Bissell was guilty of aggravated assault.A general verdict of guilty is by intendment of the law a verdict that the defendant is guilty of the highest offense charged in the indictment.Miller v. State, 60 Ga.App. 682(1),...