Gardner v. State

Court of Appeals of Georgia

Gardner v. State

363 S.E.2d 843, 185 Ga. App. 184, 1987 Ga. App. LEXIS 2450

CourtCourt of Appeals of Georgia

DecidedDecember 3, 1987

Docket75530

StatusPublished

Cited by4 cases

This text of 363 S.E.2d 843 (Gardner 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.

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Gardner v. State, 363 S.E.2d 843, 185 Ga. App. 184, 1987 Ga. App. LEXIS 2450 (Ga. Ct. App. 1987).

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Opinion

Banke, Presiding Judge.

Gardner was convicted of driving under the influence, aggravated assault, and criminal trespass. On appeal, he contends that the trial court erred in failing to instruct the jury on the elements of the offense of criminal trespass. Held:

“The trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime, or unless the state has affirmatively withdrawn a crime or stricken it from the indictment or accusation.” State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976). (Emphasis supplied.) Since the record reveals that no charge on the elements of criminal trespass was given, it follows that the appellant’s conviction of that offense must be reversed.

*185 Decided December 3, 1987. Julian Webb, for appellant. Charles M. Ferguson, District Attorney, J. Robert Smith, David H. Moseley, Assistant District Attorneys, for appellee.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.

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Banke, Presiding Judge.

Gardner was convicted of driving under the influence, aggravated assault, and criminal trespass. On appeal, he contends that the trial court erred in failing to instruct the jury on the elements of the offense of criminal trespass. Held:

“The trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime, or unless the state has affirmatively withdrawn a crime or stricken it from the indictment or accusation.” State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976). (Emphasis supplied.) Since the record reveals that no charge on the elements of criminal trespass was given, it follows that the appellant’s conviction of that offense must be reversed.

*185 Decided December 3, 1987. Julian Webb, for appellant. Charles M. Ferguson, District Attorney, J. Robert Smith, David H. Moseley, Assistant District Attorneys, for appellee.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.

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Bluebook (online)

363 S.E.2d 843, 185 Ga. App. 184, 1987 Ga. App. LEXIS 2450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-state-gactapp-1987.

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