Smith v. State, 231 S.E.2d 143 (Ga. Ct. App. 1976). · Go Syfert
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Smith v. State, 231 S.E.2d 143 (Ga. Ct. App. 1976). Cases Citing This Book View Copy Cite
59 citation events (2 in the last 25 years) across 2 distinct courts.
Strongest positive: Boone v. State (gactapp, 2001-05-07)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 14 distinct citers.
discussed Cited as authority (rule) Boone v. State
Ga. Ct. App. · 2001 · confidence medium
Sheppard, Assistant District Attorney, for appellee. 1 Williams v. State, 233 Ga. App. 217 (1) ( 504 SE2d 53 ) (1998). 2 Id. 3 See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams, supra. 4 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). 5 York v. State, 242 Ga. App. 281, 284 (2) ( 528 SE2d 823 ) (2000). 6 House v. State, 237 Ga. App. 504, 507 (3) ( 515 SE2d 652 ) (1999); see also In the Interest of J B., 223 Ga. App. 429, 432 (2) ( 477 SE2d 874 ) (1996). 7 Haynes v. State, 269 Ga. 181, 182 (2) ( 496 SE2d 721 ) (1998); Depree v. State, 246 Ga. 240, 242 (1) ( 271 SE…
discussed Cited as authority (rule) Smith v. Hardrick
Ga. · 1995 · confidence medium
Co. v. State, 83 Ga. App. 303, 306 ( 63 SE2d 451 ) (1951). 3 See Durden v. State, 152 Ga. 441, 442-443 ( 110 SE 283 ) (1922); Perry v. State, 62 Ga. App. 115, 117-118 ( 8 SE2d 425 ) (1940). 4 See Russell v. United States, 369 U. S. 749, 770 (82 SC 1038, 8 LE2d 240) (1962). 5 O’Brien, 109 Ga. at 52 . 6 See Chelsey v. State, 121 Ga. 340, 342 ( 49 SE 258 ) (1904); Frost v. State, 200 Ga. App. 267, 268 ( 407 SE2d 765 ) (1991); State v. Howell, 194 Ga. App. 594, 595 ( 391 SE2d 415 ) (1990). 7 OCGA § 16-5-21; King v. State, 178 Ga. App. 343, 344 ( 343 SE2d 401 ) (1986); Smith v. State, 140 Ga. Ap…
discussed Cited as authority (rule) Dickerson v. State
Ga. Ct. App. · 1993 · confidence medium
Simple assault “is necessarily a lesser included offense of the greater crime of aggravated assault and is an essential part thereof.” Smith v. State, 140 Ga. App. 395, 396 (1) ( 231 SE2d 143 ) (1976).
cited Cited as authority (rule) King v. State
Ga. Ct. App. · 1986 · confidence medium
Smith v. State, 140 Ga. App. 395, 396 (1) ( 231 SE2d 143 ) (1976).
discussed Cited as authority (rule) Phillips v. State
Ga. Ct. App. · 1985 · confidence medium
That’s a violation of the law of the State of Georgia; that is, the theft of a motor vehicle.” Appellant points to the failure to charge specific intent as reversible error. “[I]t is required in every criminal case for the trial judge to instruct the jury on each of the essential elements of the crime alleged in the indictment.” Smith v. State, 140 Ga. App. 395, 396 (1) ( 231 SE2d 143 ) (1976).
discussed Cited as authority (rule) Anderson v. State
Ga. Ct. App. · 1984 · confidence medium
The term ‘assault’ is a legal word of art, Smith v. State, 140 Ga. App. 395, 396 ( 231 SE2d 143 ) (1976), and as it appears in Criminal Code §§ 26-1301—26-1303 [OCGA §§ 16-5-20—16-5-22] does not encompass battery, which is separately dealt with in §§ 26-1304, 26-1305 [OCGA §§ 16-5-23, 16-5-24].
discussed Cited as authority (rule) Hightower v. State
Ga. Ct. App. · 1983 · confidence medium
Since we have now determined that simple assault is clearly a lesser included offense of aggravated assault (Smith v. State, 140 Ga. App. 395, 396 ( 231 SE2d 143 )), it therefore seems clear that either assault or battery may be lesser included offenses of an armed robbery based on the facts of a particular case.
discussed Cited as authority (rule) Merrell v. State
Ga. Ct. App. · 1982 · confidence medium
A simple assault... is necessarily a lesser included offense of the greater crime of aggravated assault and is an essential part thereof.” Smith v. State, 140 Ga. App. 395, 396 ( 231 SE2d 143 ) (1976).
cited Cited as authority (rule) Craft v. State
Ga. Ct. App. · 1981 · confidence medium
Error is enumerated to the charge that the trial court erred in failing to instruct the jury as to the meaning of assault, citing Smith v. State, 140 Ga. App. 395, 396 ( 231 SE2d 143 ).
discussed Cited as authority (rule) Wilkie v. State
Ga. Ct. App. · 1980 · confidence medium
It is said in Smith v. State, 140 Ga. App. 395, 396 ( 231 SE2d 143 ) that "in every case of *613 aggravated assault the essential element of simple assault must be stated in defining aggravated assault.” But in Riner v. State, 147 Ga. App. 707, 708-709 ( 250 SE2d 161 ), Peterkin v. State, 147 Ga. App. 437, 439 ( 249 SE2d 152 ), and again in Whitehead v. State, 149 Ga. App. 774 ( 256 SE2d 50 ), we said that where there is no question of simple assault in the evidence, the failure to charge simple assault in explanation of the elements of aggravated assault is harmless error because it is high…
discussed Cited as authority (rule) Whitehead v. State
Ga. Ct. App. · 1979 · confidence medium
We held in Smith v. State, 140 Ga. App. 395, 396 ( 231 SE2d 143 ) "in every case of aggravated assault the essential element of simple assault must be stated in defining aggravated assault.” However, in Peterkin v. State, 147 Ga. App. 437, 439 ( 249 SE2d 152 ) it was pointed out that while it is error to fail to charge on assault, such error was harmless where it was highly probable the error did not contribute to the judgment.
discussed Cited as authority (rule) Tuggle v. State (2×)
Ga. Ct. App. · 1978 · confidence medium
But we do not feel free to so contrue it because "[t]he term 'assault’ is a legal word of art,” Smith v. State, 140 Ga. App. 395, 396 ( 231 SE2d 143 ) (1976), and as it appears in Criminal Code §§ 26-1301 — 26-1303 does not encompass battery, which is separately dealt with in §§ 26-1304, 26-1305.
discussed Cited "see" Quong v. State (2×)
Ga. Ct. App. · 1981 · signal: see · confidence high
See Sutton v. State, 245 Ga. 192 (2) ( 264 SE2d 184 ), impliedly overruling Smith v. State, 140 Ga. App. 395, 396 ( 231 SE2d 143 ), insofar as that case ruled that “in every case of aggravated assault the essential element of simple assault must be stated in defining aggravated assault.” See also Bundren v. State, 155 Ga. App. 265 (2) ( 270 SE2d 807 ).
discussed Cited "see" Webb v. State (2×)
Ga. Ct. App. · 1980 · signal: see · confidence high
See generally Smith v. State, 140 Ga. App. 395 (1) ( 231 SE2d 143 ) (1976). 2.
Smith
v.
the State
52343.
Court of Appeals of Georgia.
Nov 10, 1976.
231 S.E.2d 143
James I. Wood, for appellant., Fred M. Hasty, District Attorney, Walker P. Johnson, Jr., Charles H. Weston, Assistant District Attorneys, for appellee.
Stolz, Bell, Deen, Quillian, Clark, Webb, Marshall, McMurray, Smith.
Cited by 29 opinions  |  Published
Stolz, Judge.

The defendant appeals from his conviction of 3 counts of aggravated assault.

1. The trial judge gave the following instruction to the jury: "Now, as to each of the four counts of this indictment, the charge against this defendant is Aggravated Assault With A Deadly Weapon, and, in that connection, I charge you that Code Section 26-1302 of our Criminal Code provides: 'That a person commits Aggravated Assault when he assaults another with a deadly weapon.’

"Now there are certain ingredients in this offense which must be found by you to exist before you can convict this defendant of the offense.

"There must be an assault, which is defined as either an attempt to commit a violent injury to the person of another, or the commission of an act which places another in reasonable apprehension of immediately receiving a violent injury, and this assault must be committed with a deadly weapon; that is, an instrument which, in the manner it is used at the time, is a weapon likely to kill. Before you could justify a conviction of the offense of Aggravated Assault with a deadly weapon you must believe beyond a reasonable doubt that each of these ingredients did exist at the time of the alleged assault.”

The instruction given was correct. The offense of[*396] aggravated assault has two essential elements: (1) that an assault (as defined in Code § 26-1301 (Ga. L. 1968, pp. 1249,1280)) was committed on the victim; and (2) that it was aggravated by (a) an intention to murder, to rape, or to rob, or (b) use of a deadly weapon as provided in Code § 26-1302. The term "assault” is a legal word of art and its meaning must be explained to the jury by the judge. A simple assault or assault (synonymous terms), is necessarily a lesser included offense of the greater crime of aggravated assault and is an essential part thereof. As it is required in every criminal case for the trial judge to instruct the jury on each of the essential elements of the crime alleged in the indictment, it necessarily follows that in every case of aggravated assault the essential element of simple assault must be stated in defining aggravated assault. But this does not mean that the court should authorize the jury to enter a verdict for the lesser crime in every case. Properly instructing on the essential elements of the crime charged in the indictment is a separate and distinct thing from instructing the jury that it may enter a verdict for the lesser included crime if it finds that the evidence required conviction for the lesser offense rather than the greater. In Harper v. State, 127 Ga. App. 359 (193 SE2d 259), the evidence permitted only one of two verdicts — not guilty or guilty of aggravated assault. There a conviction for simple assault was not raised by the evidence and the trial judge was properly affirmed in not allowing conviction for it as an alternative verdict. In Hightower v. State, 137 Ga. App. 790 (6) (224 SE2d 842), by citing Harper we held this although we confess our language was too broad. The cases of State v. Siebert, 133 Ga. App. 775 (2) (213 SE2d 7) and Moore v. State, 136 Ga. App. 581 (3) (222 SE2d 134) (which followed Siehert) contain contrary holdings and these two cases are expressly overruled.

2. The trial judge did not abuse his discretion in limiting the defendant’s cross examination of the witnesses whom the defendant was charged with assaulting, to crimes of moral turpitude, since it is not shown that other types of crime were committed by these witnesses. Furthermore, such limitation did not hamper the defendant’s defense of self-defense, since crimes not[*397] involving moral turpitude usually would not indicate an aggressive, violent and turbulent character, which is what the defendant was seeking to prove.

Argued July 12, 1976 Decided November 10, 1976. James I. Wood, for appellant. Fred M. Hasty, District Attorney, Walker P. Johnson, Jr., Charles H. Weston, Assistant District Attorneys, for appellee.

Judgment affirmed.

Bell, C. J., Deen, P. J., Quillian, P. J., Clark, Webb, Marshall, McMurray and Smith, JJ., concur.