Summary
In Powell, the court said, "Where the assault is committed with a deadly weapon, simple battery is not a `lesser included offense.'"
Summary of this case from Guevara v. StateOpinion
52922.
SUBMITTED OCTOBER 5, 1976.
DECIDED OCTOBER 19, 1976.
Aggravated assault. Berrien Superior Court. Before Judge Lott.
Fred L. Belcher, for appellant.
Vickers Neugent, District Attorney, Terry R. Barnick, Assistant District Attorney, for appellee.
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 S.E.2d 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 S.E.2d 842) (1976); Harper v. State, 127 Ga. App. 359, 360 (3) ( 193 S.E.2d 259) (1972).
The evidence was amply sufficient to support the verdict.
Judgment affirmed. Deen, P. J., and Smith, J., concur.