Mathis v. State

211 S.E.2d 400, 133 Ga. App. 445, 1974 Ga. App. LEXIS 1105

Opinion

Bell, Chief Judge.

The defendant was indicted for aggravated assault. The indictment also charged that he had been previously convicted of an offense and sentenced to confinement and labor in the penitentiary. His special demurrer to the indictment on the ground that it contained prejudicial matter relating to a prior offense was overruled. During the guilt or innocence stage of the trial, the previous conviction was admitted over objection. Held:

Argued November 4, 1974 Decided December 3, 1974. Sumner & Mitchell, Douglas W. Mitchell, III, Yancey & Perkins, Dane Perkins, for appellant. Vickers Neugent, District Attorney, W. S. Perry, for appellee.

1. It was not error to overrule the special demurrer for it is required that before recidivist punishment can be imposed, the defendant must have been indicted under the applicable recidivist statute, in this case Code Ann. § 27-2511. Tribble v. State, 168 Ga. 699 (148 SE 593). However, under our bifurcated trial procedure, it is reversible error, absent a waiver, to disclose the previous conviction during the guilt or innocence phase of the trial. Riggins v. Stynchombe, 231 Ga. 589, 592 (203 SE2d 208). We reverse for this reason.

2. It is not error for the trial court to fail to give requested instructions in the exact language requested where the court charged substantially the same principles contained in the requests. Jackson v. State, 225 Ga. 553 (170 SE2d 281).

Judgment reversed.

Quillian and Clark, JJ., concur.