Opinion
48788.
ARGUED NOVEMBER 9, 1973.
DECIDED JANUARY 7, 1974.
Attempted sodomy. Bibb Superior Court. Before Judge Bell.
Frank B. Lanneau, III, for appellant.
Fred M. Hasty, District Attorney, Walker P. Johnson, Jr., James W. Smith, for appellee.
A defendant was convicted of the offense of criminal attempt to commit aggravated sodomy and sentenced to five years in the penitentiary. He appealed to this court. Held:
1. The evidence was sufficient to authorize a verdict and there was no error in refusing to direct a verdict in favor of the appellant.
2. There was no error in refusing a requested charge by appellant, which charge required an intent of penetration in order to convict. See Carter v. State, 122 Ga. App. 21, 23 ( 176 S.E.2d 238).
3. Error is enumerated on the following charge: "And I charge you before you would be authorized to find the defendant guilty of the offense of criminal attempt to commit aggravated sodomy, the evidence must show beyond a reasonable doubt that it was the defendant's intention to commit or perform sodomy which is a sexual act involving the sex organ of one person and the mouth or anus of another with the female that's mentioned in the indictment and I charge you that it was his purpose to carry such intention into effect, with force, and against her will and I charge you that if he performed an act which constitutes a substantial step toward the commission of the crime of criminal attempt to commit aggravated sodomy." While the interpolation of the words "I charge you" in the portion of the charge here italicized may have been a slip of the tongue, it was not a mere slip of the tongue, which might constitute harmless error. Here, the slip of the tongue was of a very damaging and prejudical nature, constituting an expression of opinion by the trial judge as to the truth of the facts required to be proven by the state and for the jury to decide. For this error, a reversal is required. Code § 81-1104.
Judgment reversed. Eberhardt, P. J., and Stolz, J., concur.