Miller v. State, 59510
| Decision Date | 24 June 1980 |
| Docket Number | No. 59510,59510 |
| Citation | 155 Ga.App. 54,270 S.E.2d 466 |
| Parties | MILLER v. The STATE. |
| Court | Georgia Court of Appeals |
Robert B. Adams, Dalton, for appellant.
Stephen A. Williams, Dist. Atty., Marcus R. Morris, Asst. Dist. Atty., for appellee.
Miller was convicted by the Superior Court of Whitfield County of aggravated battery and attempted armed robbery. On appeal, he contends (1) the attempted armed robbery indictment is fatally deficient because it did not include the name of the victim and the words "offensive weapon"; (2) the indictment for aggravated battery indictment is fatally deficient because it does not allege the manner in which the victim was disfigured; (3) that it was improper to instruct the jury that a defendant in a criminal case has a right to subpoena any witness he desires to testify in his behalf; and (4) that the trial court erred in denying his motion for a new trial as to the offense of aggravated battery on the general grounds.
1. With regard to Enumerations 1, 3 and 4, the indictment alleging attempted armed robbery stated, in essence, that on October 21, 1978 Miller and William D. Rollins, with intent to commit the crime of armed robbery, entered a building known as the Moose Lodge with pistols and wearing masks, and one of them said "(T)his is a holdup," or words to that effect. The indictment charging Miller with aggravated battery states, in essence, that Miller and Rollins maliciously caused bodily harm to Mike Moreland by seriously disfiguring his body by shooting him in the back. Although appellant contends these indictments are fatally deficient, he cites no legal authority to support his contention.
Code Ann. § 27-701 provides, in pertinent part: "Every indictment of accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury . . ." In regard to the attempt to commit armed robbery, Code Ann. § 26-1001 provides that "(A) person commits criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." The indictment in the instant case states the offense charged (attempted armed robbery) in the terms and language of the Code (§ 26-1001); thus, it is sufficient. The same thing is true as to the indictment for aggravated battery, for Code Ann. § 26-1305 provides that a person commits aggravated battery "when he maliciously causes bodily harm to another . . . by seriously disfiguring his body . . ." As the indictment is laid in those exact terms, it is sufficient. Accordingly, Enumerations 1, 3 and 4 are without merit.
2. Appellant presented no argument and cited no authority in support of Enumeration of Error 2. Accordingly, the enumeration will not be considered pursuant to Rule 15(c)(2) of this court (Code Ann. § 24-3615(c)(2)).
3. Enumerations 5 and 6 relate to the court's charge to the jury. After the jury retired to deliberate on its findings, they returned to the court and asked why the defendant did not have some of his family at court to testify for him as to where he was rooming. The jury also asked if that (the question) was a legal question. The trial judge correctly responded that he could not answer the question; that the jury would have to base their decision on the evidence presented, and apply the law as charged to such evidence. The jury then asked: "Is it legal that some of the family can testify for a person?" The trial court responded as follows: ...
To continue reading
Request your trial
-
Wade v. State
...[Id., § 3 (Emphasis supplied).] The factual issue of "serious disfigurement" is a matter for jury determination (Miller v. State, 155 Ga.App. 54, 270 S.E.2d 466 (1980)); however, there must be sufficient evidence upon which a jury can make its determination. In determining the sufficiency o......
-
Green v. State
...of the law and provides no ground for reversal. See OCGA § 24-10-21; Klug v. State, 77 Ga. 734, 737(4) (1886); Miller v. State, 155 Ga.App. 54, 55(3), 270 S.E.2d 466 (1980). This is particularly true where, as here, the trial court also charged the jury that the defendant is presumed innoce......
-
Williams v. State
...269 Ga. 791, 796(5), 505 S.E.2d 16 (1998); Levin v. State, 222 Ga.App. 123, 127-128(7), 473 S.E.2d 582 (1996); Miller v. State, 155 Ga. App. 54, 55-56(4), 270 S.E.2d 466 (1980). Because the circumstances of each aggravated battery vary, whether disfigurement is serious is best resolved by t......
-
LIVERY v. State
...469 (1986) (possession of cocaine), overruled on other grounds, Eason v. State, 260 Ga. 445, 396 S.E.2d 492 (1990); Miller v. State, 155 Ga.App. 54(1), 270 S.E.2d 466 (1980) (attempted armed robbery); Smith v. State, 130 Ga.App. 390, 391-392, 203 S.E.2d 375 (1973) (burglary). Further, "[a]s......