Leach v. State, 54271

Decision Date30 September 1977
Docket NumberNo. 3,No. 54271,54271,3
Citation143 Ga.App. 598,239 S.E.2d 177
PartiesWalter W. LEACH v. The STATE
CourtGeorgia Court of Appeals

Stephen E. Boswell, Jonesboro, for appellant.

William H. Ison, Dist. Atty., John P. Quinlan, Asst. Dist. Atty., Jonesboro, for appellee.

DEEN, Presiding Judge.

Appellant was indicted, tried, and convicted of the offenses of aggravated assault and possession of a sawed-off shotgun in violation of the Georgia Firearms and Weapons Act. He appeals to this court asserting six enumerations of error.

On July 1, 1975, K. A. Garner, an on-duty Clayton County police officer, and his partner responded to a wife beating incident reported by appellant's neighbor. Mrs. Leach answered the officer's knock at the door and appeared upset, but her hair and clothing were not disheveled. From his vantage point at the doorway, the officer could see into the slightly darkened living room and observed appellant lying on the sofa watching television, but he did not see any indication of a struggle in the room. When asked if she was having problems, Mrs. Leach nodded her head affirmatively. At that point, appellant told the officer that he had no right to be there if he did not have a search warrant. As the officer attempted to explain the reason for his visit, appellant raised up on the sofa, repeated that the officer had no right to be there and threatened, "I'll kill you if you come into this house. If you put one foot in my house I'll kill you." The officer responded that he did not want any trouble, but if the couple were having problems, he could try to settle it, make a report, and leave. Appellant then reached under a sofa cushion as he arose, pulled out a sawed-off shotgun, began walking towards Garner, repeated his threats, jacked a round into the chamber of the gun, aimed the gun at the officer, and said, "I'm going to kill you." The officer hastily retreated to the patrol car and radioed for assistance. When the backup unit arrived, Mrs. Leach appeared from behind the apartment building and urged the officers not to hurt her husband because he no longer had a gun; he had given it to her after Officer Garner fled and she threw it out the back door. Without further resistance, the officers entered appellant's apartment and arrested him. Mrs. Leach assisted several officers in searching the area behind their patio. A sawed-off shotgun containing three live shells, including one in the chamber, was found in the area below the patio. At trial, Officer Garner identified it as the weapon used by appellant.

1. Appellant contends that the trial court erred in refusing to grant a directed verdict of acquittal on the charge of aggravated assault at the close of the state's case and at the close of all the evidence. He maintains that his actions were those of mere preparation rather than consummation of the crime aggravated assault. We disagree; "(a)ggravated assault with a deadly weapon is completed when a simple assault is committed by means of a deadly weapon." Scott v. State, 141 Ga.App. 848, 849, 234 S.E.2d 685, 686. 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." Code Ann. § 26-1301.

Appellant argues that if pointing a weapon at another while not attempting to rape, rob, or murder, and not discharging it is sufficient to constitute the crime of aggravated assault, then, by judicial fiat, we have eliminated Code Ann. § 26-2908, "Pointing a gun or pistol at another." Quite the contrary, former Code Ann. § 26-5107, "Pointing a weapon at another," was slightly revised and incorporated in the revision of the Criminal Code of 1968 as § 26-2908. The Committee Notes for this section recognize that "(m)any acts of pointing a pistol at another will constitute aggravated assault under § 26-1302, but even if not all elements required for that crime are present, the pointing of a gun or pistol at another is so calculated to cause injury or reasonable apprehension of injury that it should be a crime when done without legal justification." Appellant's actions and the reaction of the police officer meet all the requirements for an aggravated assault; appellant uttered threatening words, pulled out a gun, jacked a round into the chamber as he walked towards the officer, aimed the gun, and threatened, "I'm going to kill you." The officer immediately evidenced his fear of harm by retreating.

Appellant contends that Smith v. State, 140 Ga.App. 395, 231 S.E.2d 143, requires "use" of a gun to sustain a conviction for aggravated assault and equates use with pulling the trigger in reliance on Strange v. State, 141 Ga.App. 9, 232 S.E.2d 359; Radford v. State, 140 Ga.App....

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17 cases
  • Fair v. State
    • United States
    • Georgia Supreme Court
    • November 22, 2010
    ...d[id.] not show evidence of an 'unlawful entry, or attack upon,' the appellant's apartment by the decedent"); Leach v. State, 143 Ga.App. 598, 600(2), 239 S.E.2d 177 (1977) (rejecting the appellant's contention that any action taken by him was in defense of habitation and, thus, that the tr......
  • Bissell v. State
    • United States
    • Georgia Court of Appeals
    • April 10, 1980
    ...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. § 26-10......
  • Fears v. State
    • United States
    • Georgia Court of Appeals
    • January 25, 1980
    ...give her any instructions as to what to do with it and cannot object to her permitting its contents to be removed (see Leach v. State, 143 Ga.App. 598, 601, 239 S.E.2d 177). Appellant's relinquishment of all control over the bag in the house of another was tantamount to an abandonment. The ......
  • Wallace v. State, 58237
    • United States
    • Georgia Court of Appeals
    • September 4, 1979
    ...sequence of the events merely goes to the credibility of the witnesses and not the admissibility of the evidence. See Leach v. State, 143 Ga.App. 598, 239 S.E.2d 177 (1977). Accordingly, this judgment must be Judgment affirmed. BIRDSONG and CARLEY, JJ., concur. SHULMAN, J., not participating. ...
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1 books & journal articles
  • Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-knock Raids by Police
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 26-2, December 2009
    • Invalid date
    ...determination of whether the defendants should be immune from prosecution. Id. 147. See discussion infra Part JJ.C. 148. Leach v. State, 239 S.E.2d 177, 178 (Ga. Ct. App. 1977). 149. Id. at 179. 150. Id. 151. Id. at 180. 152. See id. In denying the defense of habitation, it is often unclear......

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