Williams v. State
| Decision Date | 23 October 1972 |
| Docket Number | No. 3,No. 47541,47541,3 |
| Citation | 193 S.E.2d 633,127 Ga.App. 386 |
| Parties | James L. WILLIAMS et al. v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Kicking with a shoe-clad foot may constitute an assault with a deadly weapon, under Code, § 26-1302, depending upon the circumstances of the case.
2. In order to sustain a conviction of 'aggravated assault' based upon use of a shoe-clad foot in such manner as to constitute a deadly weapon the State must show details surrounding the footgear and the manner in which the foot is used to kick as well as the nature of the injuries received.
A. Quillian Baldwin, Jr., Charles E. Solomon, Jr., LaGrange, for appellant.
Are shoes per se a deadly weapon? That question is here propounded where the prosecuting witness was in a scuffle with several individuals during which he lost his footing due to the slipperiness of his new boots and then while on the ground was allegedly kicked by the two defendants. 1
1. This question arises for the first time in Georgia because our new Criminal Code 2 created a felony known as 'Aggravated Assault' the pertinent portion reading 'A person commits aggravated assault when he assaults . . . (b) with a deadly weapon.' Code Ann. § 26-1302. The indictment here charged defendants as having committed this offense 'with certain shoes, deadly weapons . . .'
Under a similar statute the supreme Court of Florida said in Bass v. State (Fla.) 172 So.2d 614, 617 (1965): Cases holding similarly are Medlin v. United States (1953) 93 App.D.C. 64, 207 F.2d 33, cert. den. 347 U.S. 905, 74 S.Ct. 431, 98 L.Ed. 1064; United States v. Barber (1969, D.C.Del.) 297 F.Supp. 917; State v. Bradley (1962) 254 Iowa 211, 116 N.W.2d 439, app. dismd. and cert. den. 374 U.S. 490, 83 S.Ct. 1886, 10 L.Ed.2d 1047; Jones v. Commonealth (1953, Ky.) 256 S.W.2d 520; State v. Born (1968) 280 Minn. 306, 159 N.W.2d 283, 33 A.L.R.3d 919; State v. Mathis (1968, Mo.) 427 S.W.2d 450; Smith v. State (1944) 79 Okl.Cr. 151, 152 P.2d 279; Pettigrew v. State (1967, Okl.Cr.) 430 P.2d 808; and Hay v. State (1968, Okl.Cr.) 447 P.2d 447.
Capable counsel for the defendants submitted to trial judge Hon. Lamar Knight a request which met with his approval and which we quote herein for the guidance of the bench and the bar: feet used by them in kicking the prosecuting witness constituted deadly weapons within the meaning of the statute.
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