Opinion
56145.
SUBMITTED JUNE 26, 1978.
DECIDED SEPTEMBER 12, 1978.
Aggravated assault. DeKalb Superior Court. Before Judge Henley.
Richard M. Loftis, for appellant.
M. Randall Peek, District Attorney, Jonathan C. Peters, Assistant District Attorney, for appellee.
This appeal follows defendant's conviction for aggravated assault. We affirm the judgment.
1. The trial court, in recharging the jury, gave the following instruction: "This case must be decided by some jury selected in the same manner that you were selected and there is no reason to think that a jury better qualified than you will ever be chosen."
Appellant argues that this charge inaccurately states the law and unconstitutionally impairs the defendant's right to a fair and impartial jury. We disagree.
The charge is not an incorrect statement of the law, because it fails to instruct that a jury could, through disagreement resulting in mistrial, not decide the case. A challenge to this charge on this same basis has been considered and rejected. Ratcliff v. Ratcliff, 219 Ga. 545 ( 134 S.E.2d 605). The constitutional question raised in this enumeration has also been considered and decided adversely to appellant. Spaulding v. State, 232 Ga. 411 (4) ( 207 S.E.2d 43).
2. Appellant contends that the trial court erred by inquiring into the numerical division of the jury. We disagree.
The record shows that the court specifically cautioned the foreman to give, and in fact the foreman only reported, the distribution without indicating the breakdown as to guilt or innocence. Accordingly, no prejudicial error requiring reversal is shown. Wilson v. State, 145 Ga. App. 315 (4b) ( 244 S.E.2d 355).
Judgment affirmed. Bell, C. J., and Birdsong, J., concur.