Grubbs v. State, 66197

• Decision Date: 21 June 1983
• Docket Number: No. 66197,66197
• Citation: 306 S.E.2d 334,167 Ga.App. 365
• Parties: GRUBBS v. The STATE.
• Court: Georgia Court of Appeals

Page 334

306 S.E.2d 334

167 Ga.App. 365

GRUBBS v. The STATE.

No. 66197.

Court of Appeals of Georgia.

June 21, 1983.

Rehearing Denied July 8, 1983.

Jerry M. Daniel, Waynesboro, for appellant.

Sam B. Sibley, Jr., Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant Walter L. Grubbs and his wife were indicted and tried for cruelty to children in that they maliciously caused their son, Deldrick Brown, cruel and excessive pain by striking and beating him. The evidence adduced at trial showed that the wife brought the child, who was twenty months old, into the hospital on December 18, 1981, in a very comatose condition. He had suffered a severe blow to the head that caused substantial, and likely permanent, brain damage. In addition to the head injury, the child had a multitude of bruises and scratches on his face, bruises on his upper thighs and a suspected cigarette burn on his finger. Moreover, previous injuries were indicated by small scars all over his body and several fractures in old broken bones in different parts of the body in varied stages of healing, including his collarbone, a rib, both forearms and possibly a leg bone.

Both defendants denied inflicting a blow to the child's head or any instance of cruelty to him. Defendant Walter Grubbs admitted spanking the child on December 16, 1981, but asserted it was limited to a few slaps with an open palm on the child's hip because the child "didn't want to eat that afternoon." He also claimed that the child had fallen from the top bunk of a bunkbed that day, but, because the child did not appear to be hurt, he neither did anything about it nor mentioned it to his wife or anyone else.

The jury acquitted the wife and convicted the husband who appeals, challenging the jury charge given by the court. Held:

1. Defendant contends generally that the trial court committed reversible error in failing to tailor its jury instructions to the charge in the indictment and the evidence admitted at trial. See Walker v. State, 146 Ga.App. 237, 244(2), 246 S.E.2d 206. Defendant appears to be challenging the jury charge in two regards: (1) the court's failure to refer to the date of the alleged offense and (2) the court's failure to charge on the defense of accident.

In the indictment, defendant and his wife were charged with cruelty to children in that they "on the 16th day of December, 1981, did maliciously cause DELDRICK BROWN, a child under the age of eighteen, cruel and excessive physical pain by striking and beating said DELDRICK BROWN." In the jury charge, the trial court stated that "the Grand Jury has returned a bill of indictment against the defendants charging them with the offense of cruelty to children," followed by a general charge on indictments and followed later by the statutory definition of "cruelty to children." See OCGA § 16-5-70(b) (formerly Code Ann. § 26-2801) (Ga.L.1968, pp. 1249, 1322; 1978, pp. 228, 229; 1981, p. 683).

Defendant's argument is in effect that he was charged with cruelty to his child on December 16, 1981, and the trial court, by failing to specify this in its charge to the jury, allowed the jury to consider all the bruises, scratches, scars and broken bones suffered by the child as bearing directly on guilt or innocence rather than as circumstantially showing that he abused the child on that date. We find this argument unpersuasive. The jury knew what defendant was charged with because they had the indictment and the trial court charged that "[t]he burden is upon the State to prove every material allegation in the bill of indictment to a moral and reasonable certainty and beyond a reasonable doubt."

The alleged date of the offense was not a "material allegation" in the indictment. "The indictment in the present case did not limit the charge specifically to the date alleged and no other date, as was the case in Worley v. State, 88 Ga.App. 786, 77 S.E.2d 769." Carmichael v. State, 228 Ga. 834, 837(2), 188 S.E.2d 495. Unless the indictment expressly limits the charge to the date specified, as was done in Worley v. State, supra, the date indicated in the indictment is generally material only for statute of limitations purposes. See Carmichael v. State, supra; Gravitt v. State, 220 Ga. 781, 783(2), 141 S.E.2d 893. See also Johnson v. State, 153 Ga.App. 771, 772(2), 266 S.E.2d 551; Decker v. State, 139 Ga.App. 707, 709(5), 229 S.E.2d 520.

2. Defendant's second challenge to the jury charge is that the trial court failed to charge on the defense of accident. The charge was not requested. A defendant is entitled to an unrequested charge on a particular defense only when it is his sole or principal defense and it is supported by the evidence. Maddox v. State, 152 Ga.App. 384, 386(2), 262 S.E.2d 636; Pullen v. State, 146 Ga.App. 665, 668(3), 247 S.E.2d 128. We find that defendant failed to meet either condition, both of which must be met before an unrequested charge must be given.

Defense counsel asked each of the state's expert witnesses on cross-examination whether the child's head injury could have been caused by a fall from the top bunk of a bunkbed. He received responses of "if it was substantially higher than 10 feet"; "it would be unlikely"; and, "I still think this is a little bit more than a 10 foot injury." Defendant later testified that the child had fallen from the top bunk of a bunkbed on December 16, 1981. From this, defendant asserts that "accident" was his sole defense. "We find contrarily that 'accident' was not in fact [his] sole defense. [His] principal defense appears to have been the general defense of lack of knowledge; [his] attempts to show that the injuries to the child could have been sustained accidentally appear only incidental thereto." Fain v. State, 165 Ga.App. 188, 189(3), 300 S.E.2d 197. See also Curry v. State, 162 Ga.App. 71(3), 290 S.E.2d 179; Jones v. State, 161 Ga.App. 610, 611(4), 288 S.E.2d 788; Pullen v. State, 146 Ga.App. 665, 669(3), 247 S.E.2d 128, supra. See generally Pippins v. State, 224 Ga. 462(4), 162 S.E.2d 338; Hogan v. State, 221 Ga. 9(3), 142 S.E.2d 778; Harris v. State, 145 Ga.App. 675, 244 S.E.2d 620.

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