Public-domain · open source
OpenJurist

140 Ga. App. 36

230 S.E.2d 90

Powell v. State

Court of Appeals of Georgia

Decided October 19, 1976

Court of Appeals of Georgia · decided 1976-10-19

Relies on 127 Ga. App. 359 - Harper v. State · 137 Ga. App. 790 - Hightower v. State · 75 Ga. App. 199 - Harris v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1976-10-19

How this case has been cited

Cited by 8 later decisions — most recently July 2011

8 state decisions

3019761980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Webb, Judge.

¶1 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.

¶2 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).

¶3 The evidence was amply sufficient to support the verdict.

¶4 Judgment affirmed.

Deen, P. J., and Smith, J., concur. *37 Barnick, Assistant District Attorney, for appellee.
/140/gaapp/36 · .json · Public domain