Opinion
37061.
DECIDED MARCH 18, 1958.
Assault and battery. Coffee Superior Court. Before Judge Roddenberry. November 27, 1957.
John S. Gibson, Sapp Holton, D.C. Sapp, for plaintiff in error. Dewey Hayes, Solicitor-General, M. L. Preston, Ewing Williams, Marshall Ewing, contra.
1. An indictment alleging that the defendant assaulted a named person with intent to murder "with a certain wooden stick approximately two and one-half feet long and 3/4 inches in diameter, and with other instruments with a sharp edge to the grand jury unknown" is not subject to demurrer on the ground that the allegation "other instruments with a sharp edge", etc., is too vague and indefinite to put the defendant on notice as to what he is called on to defend against.
2. Under the circumstances of this case the trial judge did not abuse the discretion vested in him in denying the motion for a postponement of the case.
3. The evidence, which shows that the victim of the assault was beaten and also cut by a sharp instrument, is sufficient to conform the allegata and the probata.
4. Since the conviction does not depend in its entirety upon circumstantial evidence, it was not error, in the absence of request, to fail to charge on this subject.
5. In a criminal prosecution, an unnecessarily minute description of a necessary fact must be proved as charged. Since the indictment here charges a beating by means of a stick or other sharp instrument, it was error to instruct the jury that "the slightest touching of another in anger is battery", and may include "any unlawful imposition of the hands or arms", although abstractly correct. This charge, being without any other clarifying instructions in this connection, had the effect of authorizing a conviction even had the defendant not assaulted and beaten the victim in any manner alleged in the indictment.
6. Where the issue of self-defense is not raised by the evidence, failure to charge thereon, in the absence of request, is not error.
DECIDED MARCH 18, 1958.
The defendant Johnnie Davis, Jr., was indicted and tried jointly with one R. C. Kirkland in the Superior Court of Coffee County for the offense of assault with intent to murder. The indictment charged that the defendants "did then and there unlawfully and with force and arms, with a certain wooden stick approximately two and one-half feet long and 3/4 inches in diameter, and with other instruments with a sharp edge, to the grand jury unknown, each of the same, being then and there a weapon likely to produce death, did assault, beat and cut one Robert Flanders", etc. Demurrers to the indictment were overruled. On the trial Kirkland was acquitted and the plaintiff in error was convicted of assault and battery. He filed a motion for new trial which was later amended by the addition of 5 special grounds, and the denial of this motion is assigned as error.
1. The contention that the indictment was subject to demurrer because too vague and indefinite to put the defendants on notice as to what other instruments they are charged with having used is without merit. See Hall v. State, 133 Ga. 177 (1) ( 65 S.E. 400) in which a substantially identical allegation in an indictment was held not subject to this objection.
2. Special ground 1 of the amended motion for new trial assigns error on the refusal of the trial court to grant a postponement of the case. The affray on which this indictment is based occurred on October 19, 1957, and a warrant was taken out at that time. The grand jury gave it consideration on October 22, and in the afternoon returned an indictment against Davis and a codefendant, Kirkland, who was subsequently acquitted. Attorney John S. Gibson was employed by the defendant Davis shortly after the return of the true bill. The following morning Mr. Gibson tried another murder case. The following afternoon the defendants employed Attorneys D.C. Sapp and Elie Holton to assist Mr. Gibson, their leading counsel in the case. Later in the afternoon the trial court inquired whether the case would be ready for trial the next morning and one of the associate counsel replied that so far as he knew it would be ready. The case was called on the morning of October 24, at which time counsel requested a postponement on the ground that they had not had time to thoroughly investigate the case, but without stating the necessity for further investigation in any greater detail. The court denied the motion. This court has frequently emphasized that "reasonable opportunity for the defendant to prepare his defense should not be sacrificed in the interest of speed" and that a refusal to grant a reasonable request for postponement may constitute reversible error. See Waldrip v. State, 34 Ga. App. 692 (1) ( 130 S.E. 829); Cassidy v. State, 74 Ga. App. 689 ( 41 S.E.2d 181); Whitehead v. State, 96 Ga. App. 382 (1) ( 100 S.E.2d 139). The motion in the Cassidy case was based, among other things, on the ground that the defendant's counsel had not had an opportunity to talk with his client, who was in jail, a fact which does not appear here. The defendant's witnesses had been subpoenaed. It was undisputed that the altercation between the defendant and the prosecutor occurred in front of a hotel in the presence of several witnesses, and no special or complicating factors appear in the case. Counsel had on the day before indicated that they would be ready for trial. In view of these facts this court cannot say that the trial judge abused his discretion in denying the motion. See Harris v. State, 119 Ga. 114 (1) ( 45 S.E. 973); Butts v. State, 211 Ga. 16 (1) ( 83 S.E.2d 610); Cannady v. State, 190 Ga. 227 ( 9 S.E.2d 241). Special ground 1 is without merit.
3. Special ground 2 of the amended motion is an amplification of the general grounds which complains that there is no evidence in the record that the defendant cut and beat the prosecutor, Flanders, with a sharp instrument as charged in the indictment. The evidence sustaining this allegation is to the effect that Flanders sustained a cut on his head, which was visible for examination by the jury, and that he testified: "I received blows from something that felt like a stick. I sustained this injury, which was a cut that went to the skull. It went to the skull and required four stitches by the doctor and attendant." A cut is the type of wound which is produced by a sharp instrument, and testimony that one felt a blow is direct evidence that the blow was inflicted. See Kennedy v. State, 68 Ga. App. 852 ( 24 S.E.2d 321); Paschal v. State, 125 Ga. 279, 280 ( 54 S.E. 172). The testimony is supported by the opinion evidence of the medical witness as follows: "I don't think the wound was caused by a blunt instrument, because there was no swelling at the area of the lacerations. It was a sharp wound like a cut. And the other wounds were bruises." There being no evidence that the co-defendant Kirkland who was acquitted by the jury trying both jointly, struck the victim, the cut could have been inflicted only by Davis. The rule is that there is no fatal variance when the weapon alleged is one which causes a certain type of wound, and the weapon used, as shown by the evidence is one capable of effecting the same type of wound, although it is not the instrument named in the indictment, since the State is presumed to be in possession of information as to the type of injury inflicted but may not be able to determine exactly what weapon was used to bring about the result. Watson v. State, 21 Ga. App. 637, 644 ( 94 S.E. 857); Habersham v. State, 79 Ga. App. 244 ( 53 S.E.2d 578); Davis v. State, 211 Ga. 76 (1) ( 84 S.E.2d 46). The general grounds and special ground 2 of the amended motion are without merit.
4. From what has been said in the preceding division of this opinion it is clear that there was direct evidence to the effect that the victim was injured by a sharp instrument. The finding of the jury which was trying the defendants Davis and Kirkland jointly, and which acquitted Kirkland, eliminates the possible question as to whether the sharp instrument was wielded by Kirkland rather than Davis because Kirkland, had he engaged in the affray at all, would have been jointly guilty with Davis regardless of who had control of the sharp instrument, and, being acquitted, must be presumed not to have engaged in the altercation. The wound itself is direct evidence in support of the allegations of the indictment. There is in addition direct testimony of the prosecutor and several bystanders that Davis inflicted the injuries which the prosecutor received. Accordingly, the contention that it was reversible error to omit a charge on circumstantial evidence is without merit, as the conviction does not depend upon circumstantial evidence in its entirety.
5. Error is assigned in special ground 6 because the trial court, after stating the offense and punishment for battery, added "To beat, in a legal sense, is not merely to whip, would, or hurt, but includes any unlawful imposition of the hands or arms. The slightest touching of another in anger is battery." That this definition is correct see Hunt v. State, 49 Ga. App. 13 ( 174 S.E. 156). This indictment, however, charges the manner in which the assault and battery was committed with particularity, as having been made with a sharp stick of a certain description and with other sharp instruments. Where the character of the weapon enters into the description of the offense charged it must be proved as alleged, and cannot be disregarded as surplusage. See Jackson v. State, 39 Ga. App. 35 ( 145 S.E. 902); Mays v. State, 39 Ga. App. 498 ( 147 S.E. 403); Johnson v. State, 127 Ga. 277 ( 56 S.E. 420). The charge of the court authorized the jury to convict this defendant of the offense of assault and battery whether or not they believed that he had used the weapon charged in the indictment, or any weapon at all, and a conviction would not be authorized unless the jury found that the State had proved its case as laid, including its allegation as to the character of the weapon used. Accordingly, the charge was error which requires reversal of the case.
6. Error is also assigned on the failure to charge the law relating to self-defense. In the absence of request it is generally not error to fail to charge a defensive theory raised only by the defendant's statement. Here, even the statement does not clearly and unequivocally raise the issue of self-defense, but rather suggests a mutual intent to fight. The defendant said in part: "About that time he shoved me back, and that's when I hit him . . . and then he come off the building and we tied up and twisted around and I hit him again . . . he is a man, but he just bit off more than he could handle." The evidence on behalf of the State shows that the victim was set upon, knocked down several times, kicked and cut, and that he sustained very substantial injuries while the defendant sustained none at all.
The trial court erred in denying the motion for new trial for the reason set out in the fifth division hereof.
Judgment reversed. Townsend and Carlisle, JJ., concur.