Watts v. State, 53716
| Decision Date | 14 July 1977 |
| Docket Number | No. 53716,No. 1,53716,1 |
| Parties | Lucious WATTS v. The STATE |
| Court | Georgia Court of Appeals |
Louise T. Hornsby, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Atty., Atlanta, for appellee.
The appellant was convicted by a jury of aggravated assault based on an indictment charging that he had committed an assault with a deadly weapon with intent to rob. The appeal contends the conviction was unauthorized because the court refused to grant a continuance when one of the defense witnesses failed to appear, because testimony was admitted concerning a prior armed robbery, because two jurors expressed some reluctance with the verdict, and because the state failed to prove an essential allegation of the indictment. Finding no merit in these contentions, and finding further that the evidence supported the verdict, we affirm the judgment of conviction.
1. Defense counsel had served a potential witness with a subpoena on the afternoon preceding the day of trial. When this witness, who purportedly would testify that he forced the appellant to commit the attempted robbery, did not show, the court issued an attachment but refused to grant a continuance. Granting or denying a continuance is reversible error only where the court has abused its discretion. Smith v. State, 126 Ga.App. 547(2), 191 S.E.2d 304. When a criminal defendant moves for a continuance based on a witness' absence, the trial court's discretion is not abused unless the defendant has showed the court all of the prerequisites of Code § 81-1410. See Keller v. State, 128 Ga.App. 129, 131, 195 S.E.2d 767 (Evans, J., concurring specially). In this case, the record supports a conclusion that the appellant had failed to show the requirement "that he expects he will be able to procure the testimony of such witness at the next term of court." This enumeration is without merit.
2. The appellant was indicted on two counts, armed robbery and aggravated assault, and a motion to sever the charges was granted by the court upon a showing that the alleged armed robbery occurred nine days prior to the alleged aggravated assault. The state elected to proceed on the aggravated assault count, and at trial it introduced a witness who gave details of the previous armed robbery. The circumstances of the assault and the robbery were similar as to method, time, location, and weapon. Thus, the testimony about the prior incident was relevant and admissible to show, at the least, motive and intent (Foster v. State, 230 Ga. 666, 198 S.E.2d 847), especially in light of the appellant's contentions that he had been forced to commit the offense for which he was being tried.
3. The appellant contends that the jury's verdict was not unanimous because, when polled, two jurors replied that the verdict was theirs, "with question." They did, however, agree to the verdict, and even reluctant agreement is sufficient. Herrin v. State, 138 Ga.App. 729, 735(13), 227 S.E.2d 498. The State must remove reasonable doubts from the jurors' minds; it is not required to erase every question. The record reveals nothing to show that the twelve jurors did not unanimously find the defendant guilty beyond a reasonable doubt.
4. Finally, the indictment charges that the assault with intent to rob was committed "by pointing a shotgun, a deadly weapon, at and toward" the victim. The evidence showed that the appellant grabbed the victim by the neck, held a sawed-off shotgun to the victim's head, and threatened to blow his brains out. The gun was partially covered by a drape or a bag of some sort, and it, in fact, was unloaded, was missing a trigger, and was incapable of being fired. The appellant contends the state failed to prove the shotgun was a deadly weapon, as alleged.
Whether a weapon legally is a "deadly weapon" has been analyzed in two contexts. In one, the fact that the weapon...
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Scroggins v. State
...there remain in some quarters confused ideas that the genetic core of felony assault is the use of a deadly weapon. Watts v. State, 142 Ga.App. 857, 237 S.E.2d 231 cited by both sides in this case for various propositions, confronted an indictment charging assault with intent to rob "by poi......
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Clark v. State
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