Weaver v. State

357 S.E.2d 153, 182 Ga. App. 806, 1987 Ga. App. LEXIS 1830

Opinions

Banke, Presiding Judge.

The appellant was indicted on two counts of aggravated assault, the first count alleging that he had assaulted the named victim “with a knife, a deadly weapon,” and the second count that he had assaulted her on a previous occasion with an ax. The jury found him not guilty on Count 2 but guilty on Count 1. On appeal, he contends that the trial court erred in failing to charge the jury on simple assault as a lesser included offense and in failing to provide the jury with a verdict form which set fourth the option of finding him guilty of simple assault as a lesser included offense. Held:

Simple assault is not a lesser included offense of an aggravated assault in which a gun or a knife is alleged to have been used as a deadly weapon. See Powell v. State, 140 Ga. App. 36 (230 SE2d 90) (1976); Hightower v. State, 137 Ga. App. 790 (6) (224 SE2d 842) (1976).

Judgment affirmed.

Benham, J., concurs. Carley, J., concurs specially.