Davis v. State

Court of Appeals of Georgia

Davis v. State

226 S.E.2d 101, 138 Ga. App. 317, 1976 Ga. App. LEXIS 2144

CourtCourt of Appeals of Georgia

DecidedMarch 18, 1976

Docket51873

StatusPublished

This text of 226 S.E.2d 101 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. State, 226 S.E.2d 101, 138 Ga. App. 317, 1976 Ga. App. LEXIS 2144 (Ga. Ct. App. 1976).

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Opinion

Quillian, Judge.

Appeal in this case was taken from the defendant’s conviction of aggravated assault. The charge arose out of an incident in which the defendant discharged his gun, a deadly weapon in the direction of a police officer. Held:

1. The defendant’s sworn testimony was to the effect that the weapon discharged when his wife reached for the gun. He related "she had her hands on it and I took it away from her, that is when it went off.” In response to the question, "didn’t you have it in both hands like this when it went off?” He replied, "no, she had my hand and I had hers.” This was evidence which would raise the issue of [318]*318accident and hence it was error to omit a charge on Code Ann. § 26-602 (Ga. L. 1968, pp. 1249, 1269); Jordan v. State, 154 Ga. 390 (114 SE 349); Coleman v. State, 208 Ga. 511 (67 SE2d 578); Teasley v. State, 228 Ga. 107, 110 (3) (184 SE2d 179).

Argued March 2, 1976 Decided March 18, 1976 Rehearing denied April 1, 1976 Altman, Williamson, McGraw & Loftiss, Harry J. Altman, II, for appellant. H. Lamar Cole, District Attorney, for appellee.

2. The defendant’s enumeration of error with regard to the failure to charge, without request, an alleged lesser included offense is not likely to recur upon the retrial of this case.

Judgment reversed.

Deen, P. J., and Webb, J., concur.

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Quillian, Judge.

Appeal in this case was taken from the defendant’s conviction of aggravated assault. The charge arose out of an incident in which the defendant discharged his gun, a deadly weapon in the direction of a police officer. Held:

1. The defendant’s sworn testimony was to the effect that the weapon discharged when his wife reached for the gun. He related "she had her hands on it and I took it away from her, that is when it went off.” In response to the question, "didn’t you have it in both hands like this when it went off?” He replied, "no, she had my hand and I had hers.” This was evidence which would raise the issue of [318]*318accident and hence it was error to omit a charge on Code Ann. § 26-602 (Ga. L. 1968, pp. 1249, 1269); Jordan v. State, 154 Ga. 390 (114 SE 349); Coleman v. State, 208 Ga. 511 (67 SE2d 578); Teasley v. State, 228 Ga. 107, 110 (3) (184 SE2d 179).

Argued March 2, 1976 Decided March 18, 1976 Rehearing denied April 1, 1976 Altman, Williamson, McGraw & Loftiss, Harry J. Altman, II, for appellant. H. Lamar Cole, District Attorney, for appellee.

2. The defendant’s enumeration of error with regard to the failure to charge, without request, an alleged lesser included offense is not likely to recur upon the retrial of this case.

Judgment reversed.

Deen, P. J., and Webb, J., concur.

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226 S.E.2d 101, 138 Ga. App. 317, 1976 Ga. App. LEXIS 2144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-gactapp-1976.

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