Summary
In Jackson v. State, 153 Ga. App. 584 (1) (266 S.E.2d 273), this court held that, for purposes of OCGA § 16-5-24 (Code Ann. § 26-1305), an ear was rendered useless despite the fact that it was capable of hearing a "slight beep" when aided by ear phones.
Summary of this case from Magsby v. StateOpinion
58978.
SUBMITTED NOVEMBER 20, 1979.
DECIDED FEBRUARY 22, 1980.
Aggravated assault. Lowndes Superior Court. Before Judge Horkan.
Barry R. Chapman, for appellant.
H. Lamar Cole, District Attorney, Richard W. Shelton, Assistant District Attorney, for appellee.
Appellant was indicted for aggravated battery and convicted of aggravated assault. Appellant makes two contentions on appeal: (1) that the trial court erred in refusing to grant appellant's motion for directed verdict of acquittal on the aggravated battery charge and (2) that the indictment cannot support a conviction for aggravated assault. We affirm.
1. The indictment alleges that appellant "did ... maliciously cause bodily harm to Nellie Taylor Rickman, by rendering her left ear useless and by seriously disfiguring her body by shooting her with a certain pistol." Appellant contends that the state failed to prove that the victim's ear was rendered "useless." Therefore appellant argues, a directed verdict of acquittal should have been granted on the aggravated battery charge. In support of his position, appellant relies upon the following testimony of the victim: "Q. You have not been able to hear anything at all since the time you were shot? A. Well, when I go to the doctor, if I put on ear phones, I can hear a slight beep sometimes. "Q. That's in your left ear? A. Yes, sir. Q. So you can hear something in your left ear, can you not? A. A slight beep sometimes. Other than that, I can't — like just talking, or something like that, I can't hear anything like that." However, even assuming that appellant has "standing" to challenge a ruling relating to an offense of which appellant was not convicted, we find no error. Where an ear is capable of hearing no more than a "slight beep," it has been "rendered useless" for purposes of Code § 26-1305.
2. Appellant's contention that the indictment cannot support a conviction for aggravated assault is controlled adversely to him by Tuggle v. State, 145 Ga. App. 603 ( 244 S.E.2d 131) (1978). See also Williams v. State, 144 Ga. App. 130 ( 240 S.E.2d 890) (1977). The indictment alleged all essential elements of the offense of aggravated assault.
Judgment affirmed. Quillian, P. J., and Birdsong, J., concur.