Scott v. State, 53411
| Decision Date | 06 April 1977 |
| Docket Number | No. 53411,No. 1,53411,1 |
| Citation | 234 S.E.2d 685,141 Ga.App. 848 |
| Parties | Jerry SCOTT v. The STATE |
| Court | Georgia Court of Appeals |
Ben Lancaster, Cartersville, for appellant.
David N. Vaughan, Charles Crawford, Dist. Attys., Cartersville, for appellee.
The defendant appeals from his conviction for aggravated assault with a deadly weapon. Held :
1. The indictment alleged that defendant committed an aggravated assault with a deadly weapon by stabbing the victim with a knife. The state's evidence established these allegations. Defendant contends, first, that the indictment is fatally defective because it alleged an aggravated assault as well as a battery, and secondly, that a finding of guilty was not authorized because the evidence shows a completed battery and not merely an attempt or an assault. This argument is based on older cases which have held that where a completed battery is shown a conviction for simple assault is not lawful. See Kelsey v. State, 62 Ga. 558 and Kennedy v. State, 10 Ga.App. 794, 74 S.E. 95. These decisions were rendered prior to the enactment of our new criminal code (Ga.L.1968, p. 1249 et seq.), and were applications of Code § 27-2508. The latter provides: "No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended, or the offense attempted, was actually perpetrated by such person at the time of such assault, or in pursuance of such attempt." This statute and the cases that have applied it would not have any bearing on this case for the reason that the crime of aggravated assault with a deadly weapon could not conceivably fall within its provisions. This specific crime was unknown to our criminal law until it was added in the revision of the Criminal Code in 1968. In this connection see the Committee Notes concerning aggravated assault in Code Ann. Ch. 26-13. Aggravated assault with a deadly weapon is completed when a simple assault is committed by means of a deadly weapon. The fact that the assailant consummated the assault by the actual infliction of a battery or physical harm to a victim will not affect the assailant's criminal liability for this offense. Of course, the actual infliction of physical harm by means of a deadly weapon, however, may result in an additional and more serious crime, e. g. aggravated battery. In any event and more importantly Code § 27-2508 is no longer in force as it was impliedly repealed by Code §§ 26-1004 and 26-1303 of our Criminal Code of 1968 as these later provisions are clearly repugnant to and inconsistent with Code § 27-2508. Code § 26-1303 states: "A person may be convicted of an assault with intent to commit a crime if the crime intended was actually committed as a result of the assault but may not be convicted of both the assault and completed crime." Code § 26-1004 provides: "A person may be convicted of criminal attempt if the crime attempted was actually committed in pursuance of the attempt but may not be convicted of both the criminal attempt and the completed crime." Thus it is presently lawful to convict for simple assault even though the proof shows that a battery was committed because by definition an assault is nothing more than an attempted battery. See Code § 26-1301. We recognized this repugnancy in Echols v. State, 134 Ga.App. 216, 213 S.E.2d 907 where a contention similar to the one here was made. However, in Echols we failed to squarely hold that there was an implied repeal of Code § 27-2508 and also failed to...
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McKinney v. State
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...to the defendant and should not have been given in the charge." Colson, supra at 368, 226 S.E.2d 154. See also Scott v. State, 141 Ga.App. 848(2), 234 S.E.2d 685 (1977). Applying the rule in Colson to the facts of the present case where Johnson was not at home, but rather in a bar with seve......
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...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) com......
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