Echols v. State

• Decision Date: 14 February 1975
• Docket Number: No. 50115,No. 2,50115,2
• Citation: 213 S.E.2d 907,134 Ga.App. 216
• Parties: Phillip M. ECHOLS v. STATE
• Court: Georgia Court of Appeals

Page 907

213 S.E.2d 907

134 Ga.App. 216

Phillip M. ECHOLS v. STATE.

No. 50115.

Court of Appeals of Georgia, Division No. 2.

Feb. 14, 1975.

Rehearing Denied March 10, 1975.

Leonard Cohen, Jonesboro, for appellant.

William H. Ison, Dist. Atty., J. W. Bradley, Asst. Dist., Atty., Jonesboro, for appellee. Syllabus Opinion by the Court

CLARK, Judge.

Defendant was convicted under a two-count felony indictment for assault with intent to murder and for terroristic threats. Following denial of his motion for new trial, defendant appealed. The appeal is specified to be from the original judgment and sentence.

The victim of these crimes testified that he shared a prison cell with the defendant, a cohort of the defendant and several others; that defendant and his cohort twice within a matter of minutes inflicted severe beatings upon him; and that during a four-minute hiatus between the first and second beating, defendant said: "Let's go ahead and kill him; that way he won't be able to talk . . . Just let me do it; just let me do it; I won't get any more out of it." This testimony was corroborated by that of another cellmate who averred defendant said: "We ought to go ahead and kill him; it wouldn't make any difference to me, you know, I've got life and twenty years, you know; let's get rid of him; he's going to tell on us anyway".

1. The State, relying upon Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281, contends that since defendant did not assign error upon the denial of his motion for new trial, no question is presented for decision in this court. This contention is without merit. 'Until the rules of the Court of Appeals and those of the Supreme Court were amended March 2, 1972, the motion might have been good and a dismissal might have resulted. However, by Rule 14(e) now providing that 'The enumeration of errors shall be deemed to include and present for review all judgments necessary for a determination of the errors specified,' the rule of Hill v. Willis is superseded.' Slay v. Brady, 126 Ga.App. 249, 190 S.E.2d 445; Buffington v. McClelland, 130 Ga.App. 460, 466(8), 203 S.E.2d 575.

2. Defendant argues that his conviction for terroristic threats was unjustified because Code Ann. § 26-1307 'is meant to describe conduct which would be of a much more serious nature than a mere threat to an individual person.' We disagree. Code Ann. § 26-1307(a) plainly states: 'A person commits a terroristic threat when he threatens to commit any crime of violence, or to burn or damage property, with the purpose of terrorizing another, or of causing the evacuation of a building, place of assembly, or facility of public transportation . . .' (Emphasis supplied.)

3. Defendant contends his conviction for aggravated assault with intent to murder is unlawful because a battery was completed upon the victim. In support of this contention defendant relies upon Diamond v. State, 126 Ga.App. 580, 191 S.E.2d 492, wherein this court ruled a conviction of simple assault is contrary to the law where the evidence shows a battery was consummated.

Defendant's reliance upon Diamond is unfounded. That decision was predicated upon Code § 27-2508 which states: 'No person shall be convicted of an assault with intent to commit a crime, or any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted, was actually perpetrated by such person at the time of such assault, or in pursuance of such attempt.' As defendant was convicted of aggravated assault with intent to murder, and as the intended crime (murder) was not perpetrated, Code § 27-2508 would not be a bar to defendant's aggravated assault conviction.

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