Opinion
51967.
ARGUED APRIL 12, 1976.
DECIDED APRIL 22, 1976.
Simple battery. Heard Superior Court. Before Judge Knight.
Silver, Zevin, Sewell Turner, Daniel S. Zevin, Paul J. Sewell, for appellant.
William F. Lee, Jr., District Attorney, Robert Sullivan, Assistant District Attorney, for appellee.
David Reuben Johnson appeals from his conviction of the charge of simple battery and the denial of his motion for new trial.
1. Johnson was arrested for driving under the influence of alcohol and taken to the Heard County Sheriff's office for an intoximeter test. An altercation ensued during which Johnson struck a deputy with his fist and the deputy hit Johnson with his flashlight two or three times. Johnson contends that the contradictory nature of the testimony of the two state witnesses renders the case against him unworthy of belief.
We do not agree. The testimony of the two officers present was not inconsistent and the jury was authorized to find Johnson guilty of simple battery if it elected to believe them. "`After the verdict, the testimony is construed in its most favorable light to the prevailing party, which in this case is the state, for every presumption and inference is in favor of the verdict. Bell v. State, 21 Ga. App. 788 ( 95 S.E. 270).' It is for the jury to weigh the evidence and determine the credibility of the testimony and the witnesses." Heilman v. State, 132 Ga. App. 775, 780 ( 209 S.E.2d 220).
2. The state concedes that error was committed in the sentencing phase of the trial when prior convictions which did not show that Johnson had assistance of counsel, or a waiver thereof, were introduced in aggravation of punishment. Therefore a new trial is granted on the issue of sentence only. Harrison v. State, 136 Ga. App. 71 ( 220 S.E.2d 77).
Judgment affirmed in part and reversed in part. Deen, P. J., and Quillian, J., concur.