Summary
In Bagley, supra, we held: "`Even though not every phrase and portion of the Code section be applicable, it is generally held that a new trial will not be granted if the court gave in charge an entire statute or Code provision where a part thereof is applicable even though a part may be inapplicable under the facts in evidence.
Summary of this case from Diaz v. StateOpinion
59426.
SUBMITTED FEBRUARY 13, 1980.
DECIDED MARCH 7, 1980.
Aggravated assault. Polk Superior Court. Before Judge Winn.
T. Peter O'Callaghan, Jr., for appellant.
William A. Foster, III, District Attorney, Daniel J. Sammons, Assistant District Attorney, for appellee.
The defendant appeals his conviction for aggravated assault. He contends the trial judge erred in charging the substance of Code Ann. § 26-902 (b) (CCG § 26-902 (b); Ga. L. 1968, pp. 1249, 1272) because there was no evidence that the defendant and the person he stabbed were "engaged in a combat by agreement." Held:
"Even though not every phrase and portion of the Code section be applicable, it is generally held that a new trial will not be granted if the court gave in charge an entire statute or Code provision where a part thereof is applicable even though a part may be inapplicable under the facts in evidence." Rowles v. State, 143 Ga. App. 553, 557 (3) ( 239 S.E.2d 164). Accord, Pippin v. State, 205 Ga. 316 (9) ( 53 S.E.2d 482). Hence, it was not reversible error for the trial judge to give a charge on Code Ann. § 26-902 (b), parts of which were applicable to the factual situation, even though a portion thereof was not specifically pertinent. Highland v. State, 127 Ga. App. 518, 519 (1) ( 194 S.E.2d 332); Harrison v. State, 138 Ga. App. 419, 420 (2) ( 226 S.E.2d 480); Ford v. State, 232 Ga. 511, 517 (12) ( 207 S.E.2d 494).
Judgment affirmed. Shulman and Carley, JJ., concur.