But the cases Lopez cites for support of his argument that Williams's statements constituted an inadmissible "narrative" were decided under the former Evidence Code, which analyzed admissibility under the "res gestae" exception to hearsay in the former Code. See Priebe v. State , 250 Ga. App. 725, 727 (1), 553 S.E.2d 5 (2001) (narratives are generally the product of afterthought, and "the law altogether distrusts ... afterthought" (citation and punctuation omitted)); Williams v. State , 144 Ga. App. 130, 132 (1), 240 S.E.2d 890 (1977) ("[N]arrative statements of the history of the event, usually made after the declarant has had time to reflect on the occurrence, are not admissible." (citation and punctuation omitted)). The current Evidence Code does not use the term "res gestae"; instead, it addresses the admission of an "excited utterance."
The same rule applies to admissions made before commencement of the test. Williams v. State, 144 Ga. App. 130, 135 ( 240 S.E.2d 890) (1977). To the extent that Johnson v. State, 208 Ga. App. 87, 88 ( 429 S.E.2d 690) (1993), cert. denied in State v. Johnson, 1993 Ga. LEXIS 604 (Ga. May 13, 1993), cited by Drane, is in conflict with this opinion, it is overruled.
Drane v. State, 265 Ga. 255, 258-259 (5) ( 455 SE2d 27) (1995).Williams v. State, 144 Ga. App. 130, 135 (4) ( 240 SE2d 890) (1977).Judgment affirmed.
That some confusion of record exists as to whether defendant made the complained of statement before or after the test is immaterial in that the same rule applies in either situation. Drane v. State, supra at 259; Williams v. State, 144 Ga. App. 130, 135 ( 240 S.E.2d 890) (1977). In any event, the record reflects that before making his statement, the defendant had been given his Miranda warning and signed a waiver of rights form. There is no evidence that the defendant misunderstood his rights or that he gave his statement involuntarily.
(c) The State asserts that even if the admission of S. H.'s statement was erroneous, it was harmless in light of the overwhelming weight of the evidence against Cartwright. The test is whether it is "`highly probable' that the error did not contribute to the verdict."Richards v. State, 222 Ga. App. 853, 856(3) ( 476 S.E.2d 598) (1996); Williams v. State, 144 Ga. App. 130, 133(2) ( 240 S.E.2d 890) (1977) (each citing Johnson v. State, 238 Ga. 59, 61 ( 230 S.E.2d 869) (1976)). If the error is relevant to the issues in dispute, not cumulative of other evidence, not beneficial to the defendant and uncorrected by the trial court, then there is perhaps no reason for saying it is harmless, but it may nevertheless be harmless in the context of the entire case.
All of such permissible possible factual findings would constitute a lesser included offense of aggravated assault by striking the victim with a pistol, a deadly weapon. See OCGA ยง 16-1-6; Messick v. State, 209 Ga. App. 459 ( 433 S.E.2d 595) (1993); Williams v. State, 144 Ga. App. 130 ( 240 S.E.2d 890) (1977). Under the facts of this case, simple battery can be factually a lesser included offense of aggravated assault.
[Cit.]" Williams v. State, 144 Ga. App. 130, 133 (2) ( 240 S.E.2d 890) (1977). 5. Immediately prior to closing argument, appellant made another motion in limine, seeking to preclude appellee's counsel from referring in his closing argument to certain evidence which had been adduced during the trial.
Id.; see also Sanborn v. State, 159 Ga. App. 608 (1) ( 284 S.E.2d 110) (1981). I agree that the victim's statement to her grandfather set forth in the majority opinion could be construed as part of the res gestae and would be admissible, because even though a child is incompetent as a witness, the child's declarations as part of the res gestae are admissible. Williams v. State, 144 Ga. App. 130, 132 (1) ( 240 S.E.2d 890) (1977). However, this statement is not incriminatory under the charge as drawn.
This statement was not a part of the res gestae. Wallace v. State, 151 Ga. App. 171, 172 ( 259 S.E.2d 172); Williams v. State, 144 Ga. App. 130, 131 ( 240 S.E.2d 890). The victim did take the stand and testify to the same act related in the taped statement given to the police.
" "`To warrant conviction of a lesser offense, ... it is essential that the allegations describing the greater offense contain all essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser.'" Williams v. State, 144 Ga. App. 130, 134 ( 240 S.E.2d 890) (1977). Simple assault requires proof of different elements not included in terroristic threats; namely, attempting to commit a violent injury to another or causing apprehension of bodily harm on the part of the victim.