Opinion
57456.
ARGUED MARCH 8, 1979.
DECIDED APRIL 9, 1979. REHEARING DENIED MAY 3, 1979.
Aggravated assault. Liberty Superior Court. Before Judge Harvey.
A. G. Wells, Jr., for appellant.
Dupont K. Cheney, District Attorney, for appellee.
Defendant was indicted in two counts for the offense of aggravated assault against a law enforcement officer. He was convicted on both counts and sentenced to serve a term of five years as to one offense and an additional five years to be computed according to law and to run concurrent to the sentence imposed as to the other offense. A motion for new trial was filed, later amended, and after a hearing, denied. Defendant appeals. Held:
1. The motion to dismiss is not meritorious and is therefore denied.
2. The first enumeration urges error in that a state trooper was allowed to testify as to telephone calls received at the state patrol headquarters. The first call was by a female stating there was trouble at "A. C. Bryant's place." No objection was made to this testimony as to the female caller. He then testified to two other calls from a male voice identified by him as being the same person, the individual stating he lived out at A. C. Bryant's Truck Stop, that there would be some shooting out there and that the second call was to "send all the big hats so and so out here I got something for them this that and the other." The testimony was relevant to show conduct on the part of the officer and to show motive on the part of the caller. See Code § 38-302; Boggus v. State, 136 Ga. App. 917 (2) ( 222 S.E.2d 686); Arnold v. State, 236 Ga. 534, 536-537 (5) ( 224 S.E.2d 386); Bradley v. State, 137 Ga. App. 670, 671 (2) ( 224 S.E.2d 778).
3. The next enumeration of error complains of the district attorney's closing argument as to these conversations which had been admitted as original evidence under Code § 38-302. There is no merit in this complaint since the district attorney may comment upon the evidence and draw conclusions therefrom. See in this connection Wallace v. State, 146 Ga. App. 21 ( 245 S.E.2d 357); Shy v. State, 234 Ga. 816, 824 (III) ( 218 S.E.2d 599).
4. The district attorney may not comment upon the defendant's right to testimonial silence. See Mitchell v. State, 226 Ga. 450, 455 ( 175 S.E.2d 545); Spann v. State, 126 Ga. App. 370, 371 (2) ( 190 S.E.2d 924). However, there is no error for the district attorney to reflect upon the failure of the defense to present any evidence to rebut the proof adduced by the state. See Delvers v. State, 139 Ga. App. 119, 121 ( 227 S.E.2d 844); Floyd v. State, 135 Ga. App. 217, 220 ( 217 S.E.2d 452). The prosecutor may draw also inferences from the non-production of defense witnesses and to comment upon the failure to produce a witness allegedly having information. See Montgomery v. State, 140 Ga. App. 286, 287-288 (3) ( 231 S.E.2d 108); Contreras v. State, 242 Ga. 369, 372 (3) ( 249 S.E.2d 56). We find no error in the district attorney's argument that defendant failed to produce his wife to testify as to his convulsions and as to what the defendant did. There was no direct evidence that she was present but there was circumstantial evidence that she was present during the entire episode. We find no reversible error here.
5. The defendant raised the plea of insanity under his general plea of not guilty. However, the trial court correctly charged on the law covering an insanity defense, that is, that it must be shown by a preponderance of evidence that he was not mentally responsible at the time of the commission of the alleged offense. See Potts v. State, 241 Ga. 67, 81 ( 243 S.E.2d 510); Durham v. State, 239 Ga. 697, 698 ( 238 S.E.2d 334); Grace v. Hopper, 234 Ga. 669 ( 217 S.E.2d 267). While the defendant has no obligation to prove any defense the defendant is presumed to be sane until shown otherwise. See Richardson v. State, 143 Ga. App. 846, 847 (2) ( 240 S.E.2d 217); Longshore v. State, 242 Ga. 689, 690 (1) ( 251 S.E.2d 280). The charge here was not burden shifting.
6. Upon considering the entire charge the trial court correctly charged on aggravated assault as to the issue of the criminal intent necessary to commit a crime. See Riddle v. State, 145 Ga. App. 328, 330 (1) ( 243 S.E.2d 607); Grant v. State, 136 Ga. App. 351 (1) ( 221 S.E.2d 210); Harper v. State, 127 Ga. App. 359, 360 (3) ( 193 S.E.2d 259). Clearly, the court charged after instructing on the meaning of assault, that the assault becomes aggravated if committed with a deadly weapon, which it thereafter defined. There is no merit in this complaint.
7. As the court's charge on insanity was complete, the trial court did not err in failing to charge an excerpt from the case of Roberts v. State, 3 Ga. 310 (3), 326-333. Since the charge on insanity was substantially and correctly made and the general charge embraces the same subject matter or as much as is appropriate as the requested charge, there is no error. Leutner v. State, 235 Ga. 77, 81 (5) ( 218 S.E.2d 820); Crawford v. State, 236 Ga. 491, 493 ( 224 S.E.2d 365); Epps v. State, 134 Ga. App. 429, 434 (7) ( 214 S.E.2d 703).
8. Since this court does not pass on the weight of the evidence, but only upon its sufficiency, if there is any evidence to support the verdict it will be upheld. There is no merit in the contention that the evidence was insufficient to support the jury verdict since we find it sufficient. Bryant v. State, 146 Ga. App. 43, 46 (7) ( 245 S.E.2d 333) and cits. Judgment affirmed. Deen, C. J., and Shulman, J., concur.