Powell v. State

Court of Appeals of Georgia

Powell v. State

230 S.E.2d 90, 140 Ga. App. 36, 1976 Ga. App. LEXIS 1341

CourtCourt of Appeals of Georgia

DecidedOctober 19, 1976

Docket52922

StatusPublished

Cited by8 cases

This text of 230 S.E.2d 90 (Powell 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

Powell v. State, 230 S.E.2d 90, 140 Ga. App. 36, 1976 Ga. App. LEXIS 1341 (Ga. Ct. App. 1976).

Pincite

Opinion

Webb, Judge.

Henry David Powell was indicted and .convicted of the ¡.offense of aggravated assault upon "Jesse Lewis Hamilton with a -certain knife, a deadly weapon,” for which he received a sentence of five years in the penitentiary. He enumerates as error on his appeal (1) the admission into evidence of the knife allegedly used in the assault, contending that it was not positively identified; (2) the failure of the trial court to charge the jury that the state must show that the accused intended to take the life of the victim; and (3) the trial court’s failure to charge the jury that if they found no intent on the part of the accused to take the life of the victim, but intentionally to stab or cut him, then the accused would be guilty only of simple battery.

There is no merit in any of these contentions. Testimony fully connected the knife with the accused. As to the second contention, "A person commits aggravated assault when he assaults . . . (b) with a deadly weapon.” Code Ann. § 26-1302. There is no argument that the knife, with two blades each three and one-fourth inches in length, was not a deadly weapon. Harris v. State, 75 Ga. App. 199, 200 (2) (43 SE2d 110) (1947). The third enumeration is groundless — that a charge should have been given for simple battery. Where the assault is committed with a deadly weapon, simple battery is not a "lesser included offense.” Code Ann. § 26-1302, supra; Hightower v. State, 137 Ga. App. 790, 791 (6) (224 SE2d 842) (1976); Harper v. State, 127 Ga. App. 359, 360 (3) (193 SE2d 259) (1972).

The evidence was amply sufficient to support the verdict.

Judgment affirmed.

Deen, P. J., and Smith, J., concur. *37 Barnick, Assistant District Attorney, for appellee.

Free access — add to your briefcase to read the full text and ask questions with AI

Webb, Judge.

Henry David Powell was indicted and .convicted of the ¡.offense of aggravated assault upon "Jesse Lewis Hamilton with a -certain knife, a deadly weapon,” for which he received a sentence of five years in the penitentiary. He enumerates as error on his appeal (1) the admission into evidence of the knife allegedly used in the assault, contending that it was not positively identified; (2) the failure of the trial court to charge the jury that the state must show that the accused intended to take the life of the victim; and (3) the trial court’s failure to charge the jury that if they found no intent on the part of the accused to take the life of the victim, but intentionally to stab or cut him, then the accused would be guilty only of simple battery.

There is no merit in any of these contentions. Testimony fully connected the knife with the accused. As to the second contention, "A person commits aggravated assault when he assaults . . . (b) with a deadly weapon.” Code Ann. § 26-1302. There is no argument that the knife, with two blades each three and one-fourth inches in length, was not a deadly weapon. Harris v. State, 75 Ga. App. 199, 200 (2) (43 SE2d 110) (1947). The third enumeration is groundless — that a charge should have been given for simple battery. Where the assault is committed with a deadly weapon, simple battery is not a "lesser included offense.” Code Ann. § 26-1302, supra; Hightower v. State, 137 Ga. App. 790, 791 (6) (224 SE2d 842) (1976); Harper v. State, 127 Ga. App. 359, 360 (3) (193 SE2d 259) (1972).

The evidence was amply sufficient to support the verdict.

Judgment affirmed.

Deen, P. J., and Smith, J., concur. *37 Barnick, Assistant District Attorney, for appellee.

Cite This Page — Counsel Stack

Bluebook (online)

230 S.E.2d 90, 140 Ga. App. 36, 1976 Ga. App. LEXIS 1341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-state-gactapp-1976.

Opinion

Related

Cite This Page — Counsel Stack