Opinion
52402.
SUBMITTED JULY 12, 1976.
DECIDED JULY 16, 1976.
Simple battery. Fulton Criminal Court. Before Judge Flournoy from Polk State Court.
Murray M. Silver, for appellant.
Hinson McAuliffe, Solicitor, Thomas R. Moran, Hugh E. Smith, Jr., Assistant Solicitors, for appellee.
On November 18, 1974, Atlanta police officers responded to an informer's tip that drugs were present and in plain view at the "Weems Weems Cafe." Upon entering the premises the officers encountered resistance from several persons in the establishment. A fight ensued resulting in the arrests of appellant, his sister, and his brother who was appellant's partner in the restaurant business. The sister was charged with one count of simple battery, the brother with three counts and appellant with two counts.
A joint trial of the three defendants resulted in convictions of the sister and brother on all counts as against them. Appellant was acquitted on one count but convicted of the other. He appeals the conviction, enumerating as error the sufficiency of the evidence and various evidentiary rulings. Held:
The accusation upon which appellant was convicted charged that he did "intentionally cause physical harm to the person of [Officer] H. L. Mize by jumping on to the back of the said H. L. Mize." The state's evidence, however, failed to prove that appellant in fact committed the alleged act. Officer Mize did testify that the sister defendant jumped on his back and that another person, whom he did not then see, forcefully pulled him back during the fracas. But neither Officer Mize nor any of the other witnesses stated that appellant had initiated any physical contact whatsoever with the officer.
Inasmuch as the record contains no evidence tending to show that appellant committed the alleged battery, his conviction cannot stand.
Judgment reversed. Bell, C. J., and Stolz, J., concur.