Harshaw v. State, 50344
| Decision Date | 18 April 1975 |
| Docket Number | No. 50344,No. 2,50344,2 |
| Parties | Clifton L. HARSHAW v. The STATE |
| Court | Georgia Court of Appeals |
Harl C. Duffey, Jr., Rome, for appellant.
F. Larry Salmon, Dist. Atty., Robert D. Engelhart, Asst. Dist. Atty., Rome, for appellee.
Syllabus Opinion by the Court
Defendant was convicted of aggravated assault by shooting Gary Nichols with a pistol; reckless conduct by endangering the bodily safety of other persons at the scene of the shooting; and carrying a pistol without a license. He has appealed the judgment of conviction to this court. Held:
1. Defendant contends that trial judge erred in denying his attorney the right to question him about whether the victim and his friends were 'known to carry weapons' and whether 'any of them had threatened' him. The evidence showed defendant testified that he did not know whether 'any of them' had weapons. Although no basis was stated for the objection to the first question it is probable that it was because of its leading nature. The objection to the latter question was sustained only on the basis of its leading nature. The ruling was correct. Counsel did not rephrase either of his leading questions and is deemed to have abandoned them. We find no error in the procedure followed.
2. After the shooting, the police officer on duty at the school where this incident occurred went toward that area. The defendant ran up to him, handed him a pistol and said: 'I'm the one that did the shooting.' The judge charged the jury on the law of confessions. Defendant now complains that the court erred as 'there was no plenary confession of the accused but only incriminatory admissions.' Mere incriminating statements will not authorize a charge to the jury on confessions. Oliphant v. State, 52 Ga.App. 105, 182 S.E. 523. Further, a statement which admits the commission of the act charged but also gives a legal excuse or justification, is not a confession. Owens v. State, 120 Ga. 296, 48 S.E. 21. However, as in the instant case, when the defendant admits the assault with which he is charged and states no facts or circumstances showing excuse or justification, a charge on confessions is authorized. Weatherby v. State, 213 Ga. 188, 189, 97 S.E.2d 698. See also Holcomb v. State, 130 Ga.App. 154, 156, 202 S.E.2d 529; Bonds v. State, 232 Ga. 694, 208 S.E.2d 561.
3. The final enumeration of error alleges that the defendant should not have been convicted of both aggravated assault and reckless conduct when 'only one incident was involved and the greater offense of aggravated assault necessarily included the lesser offense of reckless conduct.' Code Ann. § 26-506 (Ga.L.1968, pp. 1249, 1267) permits multiple prosecutions for the same conduct which establishes more than one crime. However, a defendant may not be convicted of more than one offense if one is included within the other, or the...
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