Gardner v. State

Full title: GARDNER v. THE STATE

Court: Court of Appeals of Georgia

Date published: Dec 3, 1987

363 S.E.2d 843 (Ga. Ct. App. 1987)

363 S.E.2d 843

Opinion

75530.

DECIDED DECEMBER 3, 1987.

Aggravated assault, etc. Miller Superior Court. Before Judge Sheffield.

Julian Webb, for appellant.

Charles M. Ferguson, District Attorney, J. Robert Smith, David H. Moseley, Assistant District Attorneys, for appellee.

BANKE, Presiding Judge.

Gardner was convicted of driving under the influence, aggravated assault, and criminal trespass. On appeal, he contends that the trial court erred in failing to instruct the jury on the elements of the offense of criminal trespass. Held:

"The trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime, or unless the state has affirmatively withdrawn a crime or stricken it from the indictment or accusation." State v. Stonaker, 236 Ga. 1, 2 ( 222 S.E.2d 354) (1976). (Emphasis supplied.) Since the record reveals that no charge on the elements of criminal trespass was given, it follows that the appellant's conviction of that offense must be reversed. Judgment affirmed in part and reversed in part. Carley and Benham, JJ., concur.

DECIDED DECEMBER 3, 1987.