Ansley v. State

233 S.E.2d 272, 141 Ga. App. 314, 1977 Ga. App. LEXIS 1888

• Court: Court of Appeals of Georgia
• Decided: February 17, 1977
• Docket: 53333
• Status: Published

Opinion

Shulman, Judge.

Appellant brings this appeal from a verdict and judgment of guilty on an indictment for aggravated assault.

1. The enumeration of error on the general grounds is without merit because there was sufficient evidence to authorize the verdict. Searcy v. State, 236 Ga. 789 (225 SE2d 311).

2. In his other enumeration of error, appellant contends that the trial court erred by expressing an opinion as to the existence of disputed facts in violation of Code Ann. § 81-1104.

The indictment charged the defendant with making an assault on the victim "with a certain 2x4 board approx (sic) 2 feet long, a deadly weapon.” The victim testified that the weapon was a two-by-four. The defendant and a defense witness both testified that the instrument with which the defendant admittedly struck the victim was a tree limb.

In his charge to the jury on determining whether the weapon used was a deadly weapon, the trial court, in six of seven references to the weapon, called it "the two-by-four.” His repeated use of "the two-by-four” to describe the weapon amounted to an expression of opinion that the two-by-four had been used. By the express language of Code Ann. § 81-1104, a violation of that section is error and requires a new trial.

Judgment reversed.

Quillian, P. J., and Stolz, J., concur. Johnny Ray Ansley, pro se. Michael R. Jones, for appellant. John T. Strauss, District Attorney, for appellee.