Franklin v. State
| Decision Date | 06 October 1975 |
| Docket Number | No. 51366,No. 3,51366,3 |
| Citation | 136 Ga.App. 47,220 S.E.2d 60 |
| Parties | W. R. FRANKLIN v. The STATE |
| Court | Georgia Court of Appeals |
Langford, Pope & Bailey, James B. Langford, Calhoun, for appellant.
David N. Vaughn, Dist. Atty., Cartersville, for appellee.
Defendant was convicted and sentenced for the offense of simple battery arising out of an altercation with a State Trooper upon being arrested for driving under the influence of intoxicants. Motion for new trial was filed and denied. Defendant appeals, Held:
1. While the evidence was conflicting, the State's evidence was sufficient to show that the State Highway Patrolman told defendant he was under arrest, reached up and took defendant by the arm, defendant pulled back, and drew back his fist, and the trooper then hit him (omitting to state whether with his fist or a slap stick or other weapon), and a fight ensued. The patrolman called on his radio for help, and hit the defendant at least three times (still omitting to state whether with his fist or with a weapon), and when help arrived, the two patrolmen subdued defendant by exercise of considerable force.
The defendant testified, however, that the patrolman used his radio, and defendant thought he was calling a wrecker to tow in the defendant's car; and then the trooper said 'I thought I told you to get in that damn car'; and then 'the lights went out,' which he explained meant that he was hit with a slap stick or some other weapon; and the next thing he remembers was getting out of the car at the hospital.
As to the general grounds, this court is bound by the 'any evidence' rule and must accept the State's version of the evidence, as was done by the jury and the trial judge. The evidence of the State was sufficient to show that defendant committed simple battery upon the trooper. See Dudley v. State, 228 Ga. 551, 552(8), 186 S.E.2d 875; Welch v. State, 130 Ga.App. 18(1, 2), 202 S.E.2d 223. The enumerations of error involving the question of the sufficiency of the evidence are without merit.
2. The State contends that the defendant, having been legally arrested, had no right to resist arrest and had no right of self-defense as to said arrest, citing Code Ann. § 26-902. But the defendant contends the prosecuting state trooper struck him first (T. pp. 33, 34; T. p. 19), and the evidence clearly shows that the defendant was severely injured by the use of a slap stick. This was the sole defense of the defendant. Defendant contends the court erred in refusing to instruct the jury on self-defense as stated in Code § 26-902. It is the duty of the trial court to charge upon every material issue of fact in the case. See McRoy v. State, 131 Ga.App. 307, 308(3), 205 S.E.2d 445; Thompson v. State, 16 Ga.App. 832(4), 84 S.E. 591; Reed v. State, 15 Ga.App. 435(1), 83 S.E. 674; Wittle v. State, 50 Ga.App. 170(1), 177 S.E. 356. This error requires the grant of a new trial.
3. Defendant contends it was error for the court to fail to charge the substance of Code § 26-605, to wit, that a person will not be presumed to act with criminal intention. The trial court amply instructed the jury that the defendant entered upon the trial with the presumption of innocence in his favor, and such presumption remained with him until and unless the State introduced evidence to convince the jury beyond a reasonable doubt as to his guilt; and that the jury was the judge of the law and the facts. The court charged as to how a person might commit simple battery by intentionally making physical contact of an insulting or provoking nature with another person and intentionally causing physical harm to another. The court also charged that if the jury believed beyond a reasonable doubt that defendant committed battery, the jury should convict him, and if the jury had a reasonable doubt as to defendant's guilt, the jury should acquit him. The charge as a whole was sufficient to cover the point that a person will not be presumed to act with a criminal intention.
4. The charge in its entirety was sufficient to cover the substance of Code Ann. § 26-501, to wit, that no person should be convicted of a crime unless every element of such crime is proven beyond a reasonable doubt. There is no merit in the complaint that the trial...
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