Tuggle v. State
This text of 244 S.E.2d 131 (Tuggle 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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This appeal presents two questions: (1) Is the crime of simple battery necessarily included in the crime of aggravated assault (with a deadly weapon)? and (2) Do the allegations of the indictments here contain all the essential averments of the crime of simple battery? If both of these questions are answered in the negative, we must reverse these convictions had under indictments for assault with deadly weapons since the defendants were convicted not of assault with deadly weapons but of simple battery after the court had charged thereon over objection.
1. "An accused may be convicted of a crime included in a crime charged in the indictment, information or accusation. A crime is so included when: (a) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged, or (b) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” Criminal Code § 26-505.
"The general rule concerning lesser included offenses appears to be: 'To warrant conviction of a lesser offense on an indictment or information charging a greater offense, it is essential that the allegations describing the greater offense contain all essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser.’ ” Gearin v. State, 127 Ga. App. 811 (1) (195 SE2d 211) (1973).
[604]*604A simple assault is defined as either (a) an attempt to commit a violent injury to the person of another, or (b) an act which places another in reasonable apprehension of immediately receiving a violent injury. Criminal Code § 26-1301. An assault becomes aggravated when it is perpetrated either with intent to murder, rob or rape, or by use of a deadly weapon. Criminal Code § 26-1302. Thus, "Aggravated assault with a deadly weapon is completed when a simple assault is committed by means of a deadly weapon,” Scott v. State, 141 Ga. App. 848, 849 (234 SE2d 685) (1977), and neither type of assault requires physical contact with the victim.
Simple battery, on the other hand, requires that the accused intentionally make physical contact of an insulting or provoking nature with the person of another or intentionally cause physical harm to another. Criminal Code § 26-1304. It will thus be seen that every battery necessarily includes an assault, which is but an attempted battery (Scott v. State, 141 Ga. App. 848, 849, supra), and not the other way around. Physical contact is required for a simple battery but not for aggravated assault, and hence the crime of simple battery is not necessarily included in the crime of aggravated assault.
2. A more difficult question is presented as to whether the language of the indictments is sufficient to encompass actual physical contact or harm as required by the battery statute, Criminal Code § 26-1304, so as to authorize convictions for simple battery. They allege that defendants "did make an assault upon the person of [one victim] with a certain knife, a deadly weapon,” and "did make an assault upon the person of [the other victim] with a certain knife, hands and fists, deadly weapons.”
The problem is with the word "assault.” There is no difficulty if it is understood in its nontechnical meaning as "a violent onset or attack with physical means, as blows.” Webster’s New International Dictionary (2d Ed.). But we do not feel free to so contrue it because "[t]he term 'assault’ is a legal word of art,” Smith v. State, 140 Ga. App. 395, 396 (231 SE2d 143) (1976), and as it appears in Criminal Code §§ 26-1301 — 26-1303 does not encompass battery, which is separately dealt with in §§ 26-1304, 26-1305.
We might reach a different result had the indictments gone further and alleged that the aggravated assaults were committed "by striking and beating” the victim (Williams v. State, 144 Ga. App. 130, 133 (3) (240 SE2d 890) (1977)), or if "the grand jury specifically alleged that the defendant 'did unlawfully make an assault upon the person of [the victim] with their fists, which were used in such a manner as to be likely to cause death or great bodily injury.” Clarke v. State, 239 Ga. 42 (1) (235 SE2d 524) (1977). But absent some such language we cannot wring "battery” from "assault.”
While it is suggested that the evidence may have shown that a battery actually did occur, the question is not what the evidence showed but what the indictments alleged (or failed to allege) since, contrary to the rule in civil cases (Code Ann. § 81A-115 (b)), indictments are not deemed amended to conform to the evidence. Gentry v. State, 63 Ga. App. 275 (11 SE2d 39) (1940). The indictments here having failed to allege that there was physical contact or harm as required by the battery statute (Criminal Code § 26-1304), the charge thereon and resultant convictions were unauthorized. We have felt unable to rely upon the observation to the contrary made in Williams v. State, 127 Ga. App. 386, 389 (3) (193 SE2d 633) (1972) as it was so clearly obiter dictum.
Judgment reversed.
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Cite This Page — Counsel Stack
244 S.E.2d 131, 145 Ga. App. 603, 1978 Ga. App. LEXIS 2057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tuggle-v-state-gactapp-1978.