Assault and battery defined.

- Any act of physical violence inflicted on the person of another, which is not necessary, is not privileged, and which constitutes a harmful or offensive contact constitutes an assault and battery. Brown v. State, 57 Ga. App. 864, 197 S.E. 82 (1938).

Domestic relationship did not need to be an element of predicate offense.

- Defendant's conviction for violating the Georgia battery statute, O.C.G.A. § 16-5-23(a)(1), qualified as a predicate offense for 18 U.S.C. § 922(g)(9) purposes even though the conviction did not require as an element the existence of a domestic relationship because a domestic relationship had to exist as part of the facts giving rise to the prior offense, but it did not need to be an element of that offense. United States v. Griffith, 455 F.3d 1339 (11th Cir. 2006).

Conviction for violating statute qualified as a predicate offense for 18 U.S.C.

§ 922(g)(9) purposes. - Defendant's conviction for violating the Georgia battery statute, O.C.G.A. § 16-5-23(a)(1), qualified as a predicate offense for 18 U.S.C. § 922(g)(9) purposes and satisfied the definition of a "misdemeanor crime of domestic violence" under 18 U.S.C. § 921(a)(33)(A) even though the crime did not have as an element the use or attempted use of physical force, or the threatened use of a deadly weapon because a person could not make physical contact, particularly of an insulting or provoking nature, with another without exerting some level of physical force. Therefore, under the plain meaning rule, the "physical contact of an insulting or provoking nature" made illegal by the Georgia battery statute satisfied the "physical force" requirement of 18 U.S.C. § 921(a)(33)(A)(ii), which was defined in 18 U.S.C. § 922(g)(9). United States v. Griffith, 455 F.3d 1339 (11th Cir. 2006).

Simple battery a crime of violence under 18 U.S.C.

§ 16(a) for removal purposes under 8 U.S.C. § 1227(a)(2). - Because an alien's conviction under O.C.G.A. § 16-5-23(a)(2) required intentionally causing physical harm through physical contact, the conviction constituted a crime of violence under 18 U.S.C. § 16(a), making the alien properly removable under 8 U.S.C. § 1227(a)(2), as reviewed under 8 U.S.C. § 1252. The alien was also sentenced to a 12-month term to constitute an aggravated felony under 8 U.S.C. § 1101(a)(43). Hernandez v. United States AG, 513 F.3d 1336 (11th Cir. 2008), cert. denied, 129 S. Ct. 44, 172 L. Ed. 2d 22 (2008).

Simple battery a crime of violence for purposes of cancellation of removal.

- Simple battery under O.C.G.A. § 16-5-23 contained an element of use of physical force as required for a crime of violence under 18 U.S.C. § 16(a) and 8 U.S.C. § 1101(a)(43). Thus, an alien with a prior conviction for that crime was ineligible for cancellation of removal under 8 U.S.C. § 1229b or for discretionary relief under 8 U.S.C. § 1182(h). Irabor v. United States AG, F.3d (11th Cir. Mar. 13, 2007)(Unpublished).

Probable cause to arrest for battery.

- In an arrestee's action under 42 U.S.C. § 1983 for arresting the arrestee without probable cause, given the circumstances known to the officers as the officers observed a physical scuffle between the arrestee and another officer in an extremely crowded venue just before midnight on New Year's Eve the officers had probable cause to arrest for simple battery. Robinson v. MARTA, 334 Ga. App. 746, 780 S.E.2d 400 (2015).

Attitude of victim not an element of offense.

- It is the act, intent, and results of the defendant's act which constitute the crimes as charged; the attitude of the victim is not called into issue by these elements. Ramey v. State, 203 Ga. App. 650, 417 S.E.2d 699 (1992).

Evidence of victim's alcoholism.

- Defendant's convictions of aggravated battery and simple battery were affirmed as the trial court properly refused to admit evidence of the victim's alcoholism prior to the victim's involvement with defendant since the defendant failed to show any nexus between the victim's alcoholism and the conclusion that the victim had falsely accused defendant of battery. Harris v. State, 263 Ga. App. 329, 587 S.E.2d 819 (2003).

Evidence of victim's alleged infidelity.

- Evidence that a battery victim cheated on the defendant was properly excluded as the victim's alleged infidelity had no bearing on the victim's veracity, was intended only to impugn the victim's character, and had no relevance to any disputed issues in the case. Burrowes v. State, 296 Ga. App. 629, 675 S.E.2d 518 (2009).

Battery against a police officer.

- Defendant's convictions for simple battery and the sale of marijuana were upheld on appeal as sufficient evidence was presented that the defendant spat in the face of another and the undercover officer who the defendant sold the marijuana to testified regarding the sale; further, the trial court properly admitted similar transaction evidence as the evidence was probative of defendant's bent of mind to become belligerent with police officers when arrested. Williams v. State, 287 Ga. App. 40, 651 S.E.2d 347 (2007).

Crimes of felony obstruction of a law enforcement officer and simple battery on a law enforcement officer did not address the same criminal conduct, there was no ambiguity created by different punishments being set forth for the same crime, and the rule of lenity did not apply; although the defendant was convicted of both charged crimes, the trial court properly merged the misdemeanor battery conviction into the felony obstruction conviction. McMullen v. State, 325 Ga. App. 757, 754 S.E.2d 798 (2014).

Evidence sufficient to support conviction for hijacking, battery, and kidnapping.

- Defendants convictions of hijacking a motor vehicle, O.C.G.A. § 16-5-44.1(b), battery, O.C.G.A. § 16-5-23, and two counts of kidnapping with bodily injury, O.C.G.A. § 16-5-40(b), were affirmed because sufficient evidence was presented at trial to support the charges as the victim testified that defendant forced a way into the victim's car at gunpoint while the victim and an infant child were in the vehicle and then sexually assaulted the victim after threatening to harm the child, defendant's wallet was found in the abandoned car, and defendant admitted to the hijacking. Adams v. State, 276 Ga. App. 319, 623 S.E.2d 525 (2005).

Contact proceeding from rudeness is as offensive and harmful as that from anger or lust, and in law constitutes an assault and battery. Brown v. State, 57 Ga. App. 864, 197 S.E. 82 (1938).

Physical contact is required for simple battery but not for aggravated assault, and hence the crime of simple battery is not necessarily included in the crime of aggravated assault. Tuggle v. State, 145 Ga. App. 603, 244 S.E.2d 131 (1978); Anderson v. State, 170 Ga. App. 634, 317 S.E.2d 877 (1984).

Physical contact is required to prove simple battery. Hancock v. State, 188 Ga. App. 870, 374 S.E.2d 757, cert. denied, 188 Ga. App. 911, 374 S.E.2d 757 (1988).

There is no requirement that victim receive great bodily harm in a case of simple battery. Mize v. State, 135 Ga. App. 561, 218 S.E.2d 450 (1975).

Simple battery consists of all forms of prohibited contact and is not limited to contact that causes substantial or visible harm like battery. Thus defendant was not prejudiced when the trial court gave a lesser-included offense instruction on simple battery. Lawson v. State, 274 Ga. 866, 561 S.E.2d 72 (2002).

Simple battery a crime of violence for immigration purposes.

- District court did not err in applying an eight-level enhancement to the defendant's sentence for illegal re-entry by a previously deported alien because the defendant's prior family violence battery was a crime of violence, which made it an aggravated felony, and the causing-physical-harm element required actual physical contact that inflicted pain or injury. United States v. Parra-Guzman, 648 Fed. Appx. 974 (11th Cir. 2016)(Unpublished).

Mere pain is sufficient to show physical harm for purposes of simple battery. Meja v. State, 232 Ga. App. 548, 502 S.E.2d 484 (1998).

Manner in which act committed irrelevant.

- Defendant's contention that the "tweaking" of his estranged wife's breast was not done in an insulting or provoking manner so as to constitute the crime of simple battery was rejected and the victim's testimony that the defendant pinched her breast without consent was sufficient to authorize the trial court's finding that the defendant was guilty of simple battery. Wells v. State, 204 Ga. App. 90, 418 S.E.2d 450 (1992).

Act causing physical harm must be done intentionally or with criminal negligence.

- Act which causes the physical harm can be active or passive, and done directly or indirectly through an agency, as long as the act is done intentionally, or with criminal negligence. J.A.T. v. State, 133 Ga. App. 922, 212 S.E.2d 879 (1975).

Committing battery through use of animal.

- As a matter of law, the offense of simple battery can be committed through the use of a dog if it is shown that the defendant's conduct was a substantial factor in the causation. J.A.T. v. State, 133 Ga. App. 922, 212 S.E.2d 879 (1975).

Indictment need not allege defendant violated some other statute.

- In an indictment for assaulting a named person by running that person down with an automobile, it is not essential for the indictment to allege that the defendant also violated some other statute, such as those prohibiting speeding or driving while under the influence of intoxicants. Bailey v. State, 101 Ga. App. 81, 113 S.E.2d 172 (1960).

Three counts of an indictment charging defendant with "family violence battery (felony)" in violation of O.C.G.A. §§ 16-5-21(f),16-5-23(f), and16-5-23.1(f)(2), respectively, were sufficient as the indictment informed defendant of the charges and protected against double jeopardy; mere surplusage did not vitiate an otherwise sufficient indictment, and since the indictment did not reference the sentencing for the offense charged, the indictment did not inject the issue of punishment and was not subject to demurrer. State v. Barnett, 268 Ga. App. 900, 602 S.E.2d 899 (2004).

Indictment charging involuntary manslaughter sufficiently alleged essential elements of simple battery.

- Trial court committed no error in allowing the state to amend an indictment to charge involuntary manslaughter by the commission of the unlawful act of simple battery in violation of O.C.G.A. §§ 16-5-3(a) and16-5-23(a), rather than voluntary manslaughter, because the language of the indictment alleged an offensive use of the fists that resulted in bodily injury, and thus, sufficiently alleged all of the essential elements of simple battery; the indictment alleged that the defendant caused the death of the victim by striking the victim with a fist contrary to the laws of the state, the good order, peace, and dignity thereof and, accordingly, the lesser offense of involuntary manslaughter in the commission of the unlawful act of simple battery was included as a matter of fact in the charged greater offense of voluntary manslaughter. Morris v. State, 310 Ga. App. 126, 712 S.E.2d 130 (2011).

Accusation not vague and uncertain.

- An accusation which charges a defendant with the offense of simple battery and states that defendant "beat" the victim on a certain day in the county is not too vague and uncertain even when it does not state an offense in the language of the Code or specify any Code section. Tomlinson v. State, 123 Ga. App. 738, 182 S.E.2d 320 (1971).

Accusation not required to specify instrumentality used.

- Accusation for battery, family violence, and criminal trespass that alleged that the defendant injured the victim by striking the victim, causing a visibly bloody lip, and that the defendant knocked a hole in the victim's closet door, was sufficient under O.C.G.A. § 17-7-71(c). There was no requirement that the accusation state the instrumentality used by the defendant because the instrumentality was not an element of any of the charged crimes. State v. Leatherwood, 326 Ga. App. 730, 757 S.E.2d 434 (2014).

Municipal court lacks jurisdiction.

- Since the municipal court lacked jurisdiction to try defendant pursuant to a Uniform Traffic Citation charging defendant with "simple battery" in violation of O.C.G.A. § 16-5-23, prosecution of the offense before such court was void; accordingly, trial of defendant for simple battery in the state court was not barred on the ground of double jeopardy or prior prosecution. Rangel v. State, 217 Ga. App. 152, 456 S.E.2d 739 (1995).

Allegation of exact means of battery or language of section not required in indictment.

- An indictment for battery is not required to allege the exact manner and means of the battery, or to express the language of the charge in the exact language of the Code. J.A.T. v. State, 133 Ga. App. 922, 212 S.E.2d 879 (1975).

Indictment alleging offensive use of fists.

- After a defendant was indicted for aggravated assault and convicted of simple battery, language of the indictment tracking the aggravated assault statute by alleging that the offensive use of fists and feet resulted in bodily injury was also a sufficient allegation of simple battery. Buchanan v. State, 173 Ga. App. 554, 327 S.E.2d 535 (1985).

When an assault is committed with a deadly weapon, simple battery is not a lesser included offense under aggravated assault. Powell v. State, 140 Ga. App. 36, 230 S.E.2d 90 (1976).

Simple battery and DUI.

- Simple battery charge did not "arise from the same conduct" as a driving under the influence (DUI) charge, so as to come within the prohibition of the multiple prosecution bar, where the battery occurred 40 minutes after defendant's arrest for DUI and at a different location, the officer who made the DUI arrest was not the same person allegedly struck by defendant and the DUI involved defendant's operation of a motor vehicle, but the battery did not. State v. Littler, 201 Ga. App. 527, 411 S.E.2d 522 (1991).

Simple battery not lesser crime included in child molestation.

- Simple battery, as defined in former Code 1933, chapter 26-13 (see O.C.G.A. § 16-5-23), is not a lesser crime included in the crime of child molestation, as defined in former Code 1933, chapter 26-20 (see O.C.G.A. § 16-6-4). State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354, cert. denied, 429 U.S. 833, 97 S. Ct. 98, 50 L. Ed. 2d 98 (1976).

Trial court's refusal to charge on simple battery as a lesser included offense of child molestation was not error, where the victim testified to defendant's commission of acts of fondling which, if believed by the jury, would clearly show that defendant had committed the crime of child molestation. Brooks v. State, 197 Ga. App. 194, 397 S.E.2d 622 (1990).

Involuntary manslaughter based on battery verdict not inconsistent with felony murder/cruelty to children verdict.

- In a shaken baby death, an involuntary manslaughter verdict was not mutually exclusive of a guilty verdict for felony murder/cruelty to children because, consistent with the jury's guilty verdict on the felony murder charge, an offense requiring criminal intent, the jury predicated the jury's involuntary manslaughter verdict on a misdemeanor involving criminal intent, battery, or simple battery under O.C.G.A. §§ 16-5-23(a) and16-5-23.1(a), although the jury was also instructed on reckless conduct, a misdemeanor committed by criminal negligence, O.C.G.A. § 16-5-60(b). Drake v. State, 288 Ga. 131, 702 S.E.2d 161 (2010).

In a felony murder case involving cruelty to a child, the defendant's convictions for involuntary manslaughter based on simple battery were affirmed because the predicate offense for involuntary manslaughter was simple battery and the intent element of simple battery was not at all logically inconsistent with the mens rea required for the greater offense of aggravated assault, aggravated battery, or cruelty to children; therefore, the verdicts were not inconsistent. Griffin v. State, 296 Ga. 415, 768 S.E.2d 515 (2015).

Corporal punishment.

- Trial court erred in finding that a guardian proved by a preponderance of the evidence, as required under O.C.G.A. § 19-13-3(a), that a parent committed an act of family violence pursuant to O.C.G.A. § 19-13-1, as there was insufficient evidence that the parent committed an act of violence, specifically simple battery in violation of O.C.G.A. § 16-5-23, as opposed to administering reasonable discipline in the form of corporal punishment, as O.C.G.A. § 16-5-23 specifically exempted corporal punishment from the definition of battery, and the appellate court determined after considering O.C.G.A. §§ 16-3-20 and20-2-731 that the alleged action of the parent in slapping the child did not arise to the level of unreasonable discipline. Buchheit v. Stinson, 260 Ga. App. 450, 579 S.E.2d 853 (2003).

Potential immunity did not impact probable cause finding.

- Court properly dismissed the paraprofessional educator's amended civil-rights complaint because there was probable cause in the affidavit for a warrant for the educator's arrest for committing simple battery, the educator's potential immunity was not relevant to the probable-cause analysis, and the educator did not state a claim of supervisor liability against the principal of the school in which the arresting officer worked. Elmore v. Fulton County Sch. Dist., 605 Fed. Appx. 906 (11th Cir. 2015)(Unpublished).

Sufficiency of testimony to sustain conviction of simple battery.

- Testimony by a youth, who testified that a group of four other youths accosted the youth in a public park and that the two defendants on trial had used abusive language, and slapped and hit the youth, is sufficient to sustain a conviction of simple battery as to each of the defendants. Scott v. State, 123 Ga. App. 675, 182 S.E.2d 183 (1971).

Simple battery not offense included in robbery by force.

- Since simple battery focuses on injury to the person while robbery by force involves the taking of property from the person of another by doing physical violence to the victim, simple battery is not as a matter of law an offense included in robbery by force. Givens v. State, 184 Ga. App. 498, 361 S.E.2d 830, cert. denied, 184 Ga. App. 909, 361 S.E.2d 830 (1987).

Simple battery and robbery convictions merged.

- Because the single continuous act of simple battery, O.C.G.A. § 16-5-23(a)(1), was the evidence required to show the "force" used to accomplish a robbery, O.C.G.A. § 16-8-40(a)(1), the defendant's battery convictions merged with the robbery conviction; the "use of force" charged in connection with the robbery was "hitting," which was the same type of force used in the continuous battery. Bonner v. State, 308 Ga. App. 827, 709 S.E.2d 358 (2011).

Simple battery not a crime of moral turpitude.

- Simple battery, a misdemeanor, has been recognized to be a crime not involving moral turpitude, and a plea of nolo contendere to a charge of simple battery is admissible for impeachment of the defendant in the subsequent trial of the civil suit stemming from the battery. Jabaley v. Mitchell, 201 Ga. App. 477, 411 S.E.2d 545 (1991).

Simple battery is not a lesser included offense of false imprisonment.

- See Reynolds v. State, 231 Ga. App. 22, 497 S.E.2d 580 (1998).

Simple battery is not a lesser included offense of felony obstruction, because it is a separate and independent offense wherein the intent is to make physical contact or cause physical harm. Pearson v. State, 224 Ga. App. 467, 480 S.E.2d 911 (1997).

Defendant failed to show error in refusing to merge offenses because defendant failed to show that aggravated assault was established by the same facts used to prove simple battery; evidence that defendant entered a store wearing a mask, opened the cash drawer, tried to wrangle a key to the drawer from the employee's hand, demanded money, banged on the register, and appeared to have had a gun supported the aggravated assault conviction, but none of this evidence was needed to prove simple battery, which was established by evidence of defendant's bruising blows to the employee's arm. Lawson v. State, 275 Ga. App. 334, 620 S.E.2d 600 (2005).

Inclusion in offense of rape.

- Offense of rape necessarily includes contact of insulting or provoking nature. Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981); Humphrey v. State, 207 Ga. App. 472, 428 S.E.2d 362 (1993).

Assault, or assault and battery, is necessarily involved in every case of rape. Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981).

Registration as sex offender not required.

- Trial court erred in ordering defendant to register as a sexual offender based on a conviction for the non-sexual offense of simple battery for having placed defendant's hands on the breasts and between the legs of a fifteen-year-old girl. Sequeira v. State, 243 Ga. App. 718, 534 S.E.2d 166 (2000).

Every battery necessarily includes an assault, which is but an attempted battery. Anderson v. State, 170 Ga. App. 634, 317 S.E.2d 877 (1984).

Recently conceived fetus not a "child" under O.C.G.A.

§ 16-5-23(f). - O.C.G.A. § 16-5-23(f) did not cover the relationship the defendant shared with the victim, a person the defendant had sexual relations with but did not know was pregnant, because the victim's testimony suggested that the victim was only a few weeks into the pregnancy at the time of the incident, and that the victim had "lost" the child; such a recently conceived fetus was not a "child" under O.C.G.A. § 16-5-23(f). Gillespie v. State, 280 Ga. App. 243, 633 S.E.2d 632 (July 3, 2006).

Evidence sufficient to support delinquency adjudication.

- There was sufficient evidence to support an adjudication of delinquency based on simple battery. The juvenile defendant's parent testified that the defendant slapped the parent's finger, hit the parent, and pushed the parent with sufficient force that the parent fell on the floor and dislodged the parent's prosthesis; the fact that the defendant had a different account of the altercation and that the parent did not remain passive during the altercation did not require a different result. In the Interest of B.B., 298 Ga. App. 432, 680 S.E.2d 497 (2009).

Evidence was sufficient to find a juvenile committed the lesser included offense of simple battery because the juvenile's act of placing the juvenile's hands in the victim's pockets despite the victim's protests to remove the juvenile's hands was a prohibited act under O.C.G.A. § 16-5-23(a)(1). In the Interest of D.M., 308 Ga. App. 589, 708 S.E.2d 550 (2011).

Evidence sufficient to support conviction.

- See Manus v. State, 180 Ga. App. 658, 350 S.E.2d 41 (1986); Jackson v. State, 182 Ga. App. 826, 357 S.E.2d 143 (1987); Conejo v. State, 189 Ga. App. 14, 374 S.E.2d 826 (1988); Bedley v. State, 189 Ga. App. 90, 374 S.E.2d 841 (1988); Mitchel v. State, 193 Ga. App. 146, 387 S.E.2d 390 (1989); Huffman v. State, 201 Ga. App. 642, 411 S.E.2d 787 (1991); Waddell v. State, 224 Ga. App. 172, 480 S.E.2d 224 (1996); Basu v. State, 228 Ga. App. 591, 492 S.E.2d 329 (1997); Miller v. State, 230 Ga. App. 73, 495 S.E.2d 329 (1998); Eberhart v. State, 241 Ga. App. 164, 526 S.E.2d 361 (1999); Shaw v. State, 247 Ga. App. 867, 545 S.E.2d 399 (2001); In the Interest of W.B., 255 Ga. App. 192, 564 S.E.2d 816 (2002); Miller v. State, 271 Ga. App. 524, 610 S.E.2d 156 (2005).

Evidence that defendant held the victim against the victim's will while defendant made physical advances against the victim and physically caused the victim harm was sufficient to convict defendant of false imprisonment and simple battery. Reynolds v. State, 231 Ga. App. 22, 497 S.E.2d 580 (1998).

Testimony of a single witness was sufficient to authorize a jury's verdict that defendant was guilty beyond a reasonable doubt of committing aggravated assault with a deadly weapon and that defendant committed simple battery by intentionally kicking the victim on the ankle, causing a bruise. Ringo v. State, 236 Ga. App. 38, 510 S.E.2d 893 (1999).

Evidence was sufficient to support defendant's convictions of two counts of armed robbery, two counts of theft by taking, three counts of aggravated assault in violation of O.C.G.A. § 16-5-21(a)(2), three counts of simple battery, three counts of kidnapping, and two counts of possessing a firearm during the commission of a crime since: (1) there was evidence that defendant entered a store, placed a knife to the neck of one of the three victims, forced that victim to the back of the store, aided another assailant who was armed with a gun to bind the victims and drag the victims to the back of the store, and stole money and other items from two of the victims; (2) defendant confessed to the crimes during interviews with law enforcement officials; and (3) defendant's confessions were corroborated by the testimony of one of the victims who, despite earlier being unable to identify the robbers, ultimately identified defendant as one of the robbers. The corroborating victim's initial inability to identify defendant posed an issue of credibility for the jury's resolution and did not require reversal. Phanamixay v. State, 260 Ga. App. 177, 581 S.E.2d 286 (2003).

Evidence was sufficient to find defendant committed simple battery on the victim, defendant's ex-spouse, pursuant to O.C.G.A. § 16-5-23(a), as defendant struck and kicked the victim repeatedly over a 26-hour period, leaving the ex-spouse with severe injuries to the face, arms, and neck coupled with broken bones. Hammonds v. State, 263 Ga. App. 5, 587 S.E.2d 161 (2003).

Evidence supported a simple battery conviction because, in responding to a9-1-1 call, a deputy saw the defendant holding the victim down on a bed and the victim screamed as the defendant held the victim down. Pitts v. State, 272 Ga. App. 182, 612 S.E.2d 1 (2005), aff'd, 280 Ga. 288, 627 S.E.2d 17 (2006).

Delinquency finding for acts constituting party to the crimes of aggravated assault and battery was supported by sufficient evidence showing that the appellant was one of a group of youths who punched, kicked, and struck one victim with a shotgun, and participated in the attack; the appellant also knocked another victim to the ground and hit that victim during the fracas. In the Interest of E.R., 279 Ga. App. 423, 631 S.E.2d 458 (2006).

Because the victim's testimony, standing alone, was sufficient to establish the defendant's guilt beyond a reasonable doubt, when the evidence showed: (1) two separate aggravated assaults, one with a knife and one with a hammer; (2) two separate instances of simple battery; and (3) a hours-long detention of the victim by the defendant, said evidence amply supported the jury's conviction on the charges of false imprisonment, aggravated assault, and simple battery. Brigman v. State, 282 Ga. App. 481, 639 S.E.2d 359 (2006).

Because sufficient evidence was presented via the testimony of the victim regarding the defendant's attack with a screwdriver, which was corroborated by the defendant's own admissions at trial, the defendant's simple battery conviction was upheld on appeal; moreover, the defendant's characterization of the incident as one involving mutual argument did not in and of itself justify the actions. Rainey v. State, 286 Ga. App. 682, 649 S.E.2d 871 (2007).

Despite waiving error regarding a show up identification because: (1) a victim's identification of the defendant as one of the perpetrators of a burglary, robbery, and battery was sufficient and non-suggestive; and (2) the corroborating testimony from the defendant's two accomplices was admissible to support the defendant's convictions as both accomplices testified as to the defendant's involvement in the crimes, those convictions were upheld on appeal; thus, a new trial was properly denied. Carr v. State, 289 Ga. App. 875, 658 S.E.2d 419 (2008).

Evidence supported a simple battery conviction under O.C.G.A. § 16-5-23 when the defendant slammed a door on the victim, the defendant's lessor, knocking the victim down a short flight of stairs. As the defendant's oral tenancy had always been subject to the right of realtors to enter the residence, the victim, who sought to enter the home upon two hours' notice to show the property to a new realtor, was within the victim's rights to enter the premises; even if this were not the case, because the defendant might have simply denied the victim reentry by warning the victim not to proceed further and closing the door, the defendant's use of force exceeded that permissible under O.C.G.A. § 16-3-23 had there been no right of reentry. Young v. State, 291 Ga. App. 460, 662 S.E.2d 258 (2008).

There was sufficient evidence to support a defendant's conviction for involuntary manslaughter of the defendant's romantic friend given the evidence of the defendant's admission that the defendant placed the friend in a headlock during a fight, and the medical examiner's findings that the friend was strangled to death. As a result, the jury was authorized to exclude all other reasonable hypotheses and conclude that the defendant unintentionally caused the friend's death while committing simple battery. Lemon v. State, 293 Ga. App. 488, 667 S.E.2d 654 (2008).

Evidence was sufficient to support a verdict of simple battery when the defendant grabbed the victim by the hair and dragged the victim by the hair. Eller v. State, 294 Ga. App. 77, 668 S.E.2d 755 (2008).

Evidence that showed that during an argument with the victim, the defendant dragged the victim off a couch by the victim's hair and threw a table at the victim, that the victim fled on foot and attempted to make a9-1-1 call, that the defendant pursued the victim in the defendant's truck, reached the victim, and held a knife to the victim, retreating only after another vehicle drove up, was sufficient to convict the defendant of family violence simple battery. Stone v. State, 296 Ga. App. 305, 674 S.E.2d 31 (2009).

Testimony that the defendant hit the victim and pinned the victim to the floor was sufficient to convict the defendant of simple battery beyond a reasonable doubt. Burrowes v. State, 296 Ga. App. 629, 675 S.E.2d 518 (2009).

When two witnesses testified that the defendant fought with at least one rival gang member outside of a restaurant and another witness testified that the rival gang member had scratches and bruises on the rival's face as a result of the fight, the evidence was sufficient to allow the jury to find the defendant guilty of simple battery. Lopez v. State, 297 Ga. App. 618, 677 S.E.2d 776 (2009), overruled on other grounds, State v. Gardner, 286 Ga. 633, 690 S.E.2d 164 (2010).

Defendant's simple battery conviction under O.C.G.A. § 16-5-23 was supported by evidence that the defendant was in the room when the codefendant was striking the victim with a baseball bat. Wilkinson v. State, 298 Ga. App. 190, 679 S.E.2d 766 (2009).

Defendant's simple battery conviction was supported by evidence from the investigating officer that the victim told the officer that the defendant struck the victim in the face with a closed fist, although at trial, the victim testified that the victim had lied to police about being punched in the face because the victim was angry with the defendant. Miller v. State, 300 Ga. App. 652, 686 S.E.2d 302 (2009).

Evidence was sufficient to support defendant's conviction for simple battery because during an argument defendant grabbed the defendant's girlfriend by one arm, pulled her into the living room, threw her chest first against the back of a couch, handcuffed her hands behind her back, and did not release her from the handcuffs despite her requests to be released. Turner v. State, 307 Ga. App. 376, 705 S.E.2d 177 (2010).

Defendant's convictions for family violence battery and simple battery were supported by evidence from the victim that the defendant had slapped the victim and choked the victim, an officer's observation of red marks around the victim's neck, and evidence of the defendant's two prior guilty pleas to batteries against the defendant's spouse. Evidence of the victim's fear of retrieving the victim's children from the house and the defendant's threats to spread the victim's brains on the wall supported the simple assault conviction. Cuzzort v. State, 307 Ga. App. 52, 703 S.E.2d 713 (2010).

Evidence sufficient to support conviction.

- Sufficient evidence supported a defendant's convictions of robbery under O.C.G.A. § 16-8-40 and simple battery under O.C.G.A. § 16-5-23 since: (1) the defendant grabbed the victim by the throat, put the victim against a wall, and threw the victim onto a table; (2) the victim got a knife; (3) the defendant ran, taking the victim's gaming system and marijuana; and (4) the defendant's claim that the state's main witnesses were not credible was rejected as credibility was a jury matter. Slan v. State, 316 Ga. App. 843, 730 S.E.2d 565 (2012).

Evidence was sufficient to support the defendant's conviction for family violence simple battery as the state presented ample evidence that the defendant struck the defendant's wife in the head and face and bit the wife on the back, and that the amount of force that the defendant used was not justified. Howe v. State, 322 Ga. App. 294, 744 S.E.2d 818 (2013).

Evidence insufficient for conviction.

- Evidence was not sufficient to support a conviction under O.C.G.A. § 16-5-23(f) as: (1) the state failed to prove the existence of a familial relationship between defendant and the victim; (2) the legislature failed to include sexual partners in the list of persons who constituted a family under the purview of § 16-5-23(f); and (3) defendant and the victim did not enjoy any other special familial relationship outlined under § 16-5-23. Gillespie v. State, 280 Ga. App. 243, 633 S.E.2d 632 (2006).

Although an officer alleged that the defendant threw the defendant's elbows back and forth, evidence was insufficient to support the defendant's conviction for simple battery because the state failed to prove the necessary element of contact. Ewumi v. State, 315 Ga. App. 656, 727 S.E.2d 257 (2012).

Officer lacked probable cause to arrest the defendant for battery because a struggle between the defendant and the officer ensued only after the officer attempted to unlawfully arrest defendant for obstruction. Defendant was justified in resisting the unlawful arrest with all force that was reasonably necessary to do so. Ewumi v. State, 315 Ga. App. 656, 727 S.E.2d 257 (2012).

Defendant not deprived of Sixth Amendment right to counsel.

- In a battery prosecution, setting aside the defendant's failure to object to a second attorney's representation at trial, a denial from the defendant's first attorney of an alleged promise to represent the defendant after that counsel's suspension had expired gave the trial court sufficient grounds for finding that no such promise occurred, eliminating the defendant's denial of the right to counsel claim; moreover, inasmuch as the defendant failed to challenge the trial court's finding that the second attorney's representation was effective, the defendant was not entitled to a new trial. Northington v. State, 287 Ga. App. 96, 650 S.E.2d 760 (2007).

Multiple charges resulting from single attack.

- Evidence that defendant hit defendant's love interest on the head, pushed the love interest around, grabbed the love interest by the hair, jerked the love interest to the ground, and stuck a knife to the love interest's throat supported the trial court's judgment finding defendant guilty of two counts of battery, and the trial court did not err by imposing separate sentences for each conviction or by ordering defendant to serve those sentences consecutively. McFalls v. State, 260 Ga. App. 578, 580 S.E.2d 328 (2003).

When the victim attempted to intervene to break up a fight between the defendant and another but the defendant aggressively hit the victim causing the victim to bleed above the eye, the evidence was sufficient to show lack of justification and to sustain the defendant's conviction for simple battery. Cobble v. State, 259 Ga. App. 236, 576 S.E.2d 623 (2003).

Evidence that showed that the defendant attacked the defendant's spouse and the spouse's parent and broke the windshield and at least one other window on the spouse's car was sufficient to sustain the defendant's convictions on two counts of simple battery and one count of criminal trespass, and the defendant was not subjected to cruel and unusual punishment because the trial court imposed a sentence of 12 months' incarceration for simple battery and 12 months' incarceration for criminal trespass, and ordered that the defendant serve the sentences consecutively. Hill v. State, 259 Ga. App. 363, 577 S.E.2d 61 (2003).

Sentence.

- Defendant's sentence to three consecutive twelve month terms for three simple battery convictions, with eight months to serve in confinement and the rest on probation, did not constitute cruel and unusual punishment. Dudley v. State, 242 Ga. App. 53, 527 S.E.2d 912 (2000).

Charge dismissed on basis of immunity.

- Trial court properly held that the defendant, who was charged with family violence battery and simple battery under O.C.G.A. §§ 16-5-23.1(f) and16-5-23, was immune from prosecution under O.C.G.A. § 16-3-24.2. The testimony of the defendant's friend that the defendant restrained the friend after the friend broke the defendant's windshield and kicked a car seat, knocking the defendant into the steering wheel, provided some evidence that the defendant's actions were justified under O.C.G.A. § 16-3-21(a). State v. Yapo, 296 Ga. App. 158, 674 S.E.2d 44 (2009).

Simple battery conviction merged into family violence battery conviction.

- Defendant's conviction for simple battery, O.C.G.A. § 16-5-23(a)(2), should have been merged into the defendant's conviction for family violence battery, O.C.G.A. § 16-5-23.1, because each battery was not a separate and complete criminal act but rather was part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent. Clement v. State, 309 Ga. App. 376, 710 S.E.2d 590 (2011).

Restitution authorized.

- Trial court was authorized under O.C.G.A. § 17-14-9 to order the defendant to pay the victim's medical expenses as restitution for damages caused by the defendant's simple battery of the victim in violation of O.C.G.A. § 16-5-23(a) because the court's finding that the victim was injured by and had incurred costs as a result of the defendant's criminal behavior toward the victim was not clearly erroneous; the order for restitution did not exceed the amount of costs the victim incurred, and even if others at the scene could have also kicked the victim, that did not negate the defendant's liability for damages caused by the defendant's role in the attack. Elsasser v. State, 313 Ga. App. 661, 722 S.E.2d 327 (2011), cert. denied, No. S12C0949, 2012 Ga. LEXIS 555 (Ga. 2012).

Insurance policy assault and battery endorsement.

- Trial court did not err in finding that, under the policy, the plaintiff's claim for damages for false imprisonment arose out of an assault and battery and were thus subject to the $50,000 sublimit in the assault and battery endorsement because under the clear language of the endorsement, the plaintiff's damages for false imprisonment and false arrest arose out of an alleged assault and battery and the assault and battery were the genesis of the plaintiff's claims for false imprisonment and arrest. Zook v. Arch Specialty Ins. Co., 336 Ga. App. 669, 784 S.E.2d 119 (2016).

Cited in Barrett v. State, 123 Ga. App. 210, 180 S.E.2d 271 (1971); Newton v. State, 127 Ga. App. 64, 192 S.E.2d 526 (1972); Williams v. State, 127 Ga. App. 386, 193 S.E.2d 633 (1972); Smith v. State, 127 Ga. App. 468, 193 S.E.2d 921 (1972); Clark v. State, 131 Ga. App. 68, 205 S.E.2d 71 (1974); Mize v. State, 131 Ga. App. 538, 206 S.E.2d 530 (1974); Echols v. State, 134 Ga. App. 216, 213 S.E.2d 907 (1975); Taylor v. State, 135 Ga. App. 916, 219 S.E.2d 629 (1975); Harper v. State, 135 Ga. App. 924, 219 S.E.2d 636 (1975); Fountain v. York, 237 Ga. 784, 229 S.E.2d 629 (1976); Williams v. State, 144 Ga. App. 72, 240 S.E.2d 591 (1977); Hunter v. Clardy, 558 F.2d 290 (5th Cir. 1977); Barber v. State, 146 Ga. App. 523, 246 S.E.2d 510 (1978); Riner v. State, 147 Ga. App. 707, 250 S.E.2d 161 (1978); State v. Burroughs, 149 Ga. App. 183, 254 S.E.2d 144 (1979); State v. Burroughs, 244 Ga. 288, 260 S.E.2d 5 (1979); P.D. v. State, 151 Ga. App. 662, 261 S.E.2d 413 (1979); Jinks v. State, 155 Ga. App. 925, 274 S.E.2d 46 (1980); Radney v. State, 156 Ga. App. 442, 274 S.E.2d 800 (1980); Ables v. State, 156 Ga. App. 678, 275 S.E.2d 750 (1980); Hicks v. State, 157 Ga. App. 79, 276 S.E.2d 129 (1981); Duncan v. State, 163 Ga. App. 148, 294 S.E.2d 365 (1982); Watkins v. State, 254 Ga. 267, 328 S.E.2d 537 (1985); Cater v. State, 176 Ga. App. 388, 336 S.E.2d 314 (1985); McCrary v. State, 176 Ga. App. 683, 337 S.E.2d 442 (1985); Jackson v. State, 177 Ga. App. 718, 341 S.E.2d 274 (1986); Patterson v. State, 181 Ga. App. 68, 351 S.E.2d 503 (1986); McCord v. State, 182 Ga. App. 586, 356 S.E.2d 689 (1987); Johnson v. State, 185 Ga. App. 167, 363 S.E.2d 773 (1987); Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988); Hudgins v. State, 186 Ga. App. 883, 369 S.E.2d 54 (1988); Howe v. State, 202 Ga. App. 462, 414 S.E.2d 748 (1992); Hussey v. State, 206 Ga. App. 122, 424 S.E.2d 374 (1992); Bryant v. State, 226 Ga. App. 135, 486 S.E.2d 374 (1997); Vaughn v. State, 226 Ga. App. 318, 486 S.E.2d 607 (1997); In re A.C., 226 Ga. App. 369, 486 S.E.2d 646 (1997); Dunn v. State, 234 Ga. App. 623, 507 S.E.2d 170 (1998); Cook v. State, 255 Ga. App. 578, 565 S.E.2d 896 (2002); Maynor v. State, 257 Ga. App. 151, 570 S.E.2d 428 (2002); Strickland v. State, 265 Ga. App. 533, 594 S.E.2d 711 (2004); Lloyd v. State, 280 Ga. 187, 625 S.E.2d 771 (2006); Martin v. State, 278 Ga. App. 465, 629 S.E.2d 134 (2006); Glanton v. State, 283 Ga. App. 232, 641 S.E.2d 234 (2007); In the Interest of B.M., 289 Ga. App. 214, 656 S.E.2d 855 (2008); Armstrong v. State, 292 Ga. App. 145, 664 S.E.2d 242 (2008); Whatley v. State, 296 Ga. App. 72, 673 S.E.2d 510 (2009); Greene v. State, 295 Ga. App. 803, 673 S.E.2d 292 (2009); Futch v. State, 316 Ga. App. 376, 730 S.E.2d 14 (2012); Martinez v. State, 322 Ga. App. 63, 743 S.E.2d 621 (2013); State v. Randle, 298 Ga. 375, 781 S.E.2d 781 (2016); State v. Ashley, 299 Ga. 450, 788 S.E.2d 796 (2016); Harper v. State, 337 Ga. App. 57, 785 S.E.2d 691 (2016).

Instructions not required on simple battery where not reasonably raised by evidence.

- When the offense of simple battery is not reasonably raised by the evidence, it is not in issue so as to require instructions. Guthrie v. State, 147 Ga. App. 351, 248 S.E.2d 714 (1978).

Refusal to give requested charge not error.

- Trial court did not err in refusing to give the defendant's requested jury charge that consent or lack thereof was an element of simple battery because the trial court correctly charged the jury by quoting the statutory language in O.C.G.A. § 16-5-23(a)(1), and the defendant was allowed to present a consent defense to the jury as a challenge to the "insulting or provoking nature" element. Redding v. State, 318 Ga. App. 84, 733 S.E.2d 383 (2012).

Charging as a lessor included offense of cruelty to children.

- Trial court did not err in refusing to charge on simple battery under O.C.G.A. § 16-5-23 as a lesser included offense of cruelty to children; there was no evidence to support the offense of simple battery because the defendant claimed that the child accidentally fell while the defendant was playing with the child. Moore v. State, 283 Ga. 151, 656 S.E.2d 796 (2008).

Charging lesser included offense of aggravated assault.

- Since the jury was authorized to decide defendant's fists and hands were not used as deadly weapons as required for aggravated assault, there was no error in charging on simple battery, which was a lesser included offense of aggravated assault. Guevara v. State, 151 Ga. App. 444, 260 S.E.2d 491 (1979).

Defendant failed to demonstrate that the defendant's trial counsel erred by failing to request a jury charge on simple battery as a lesser included offense of the charged crime of aggravated assault because there was no evidence that the defendant made physical contact with the victim or caused physical harm to the victim; since the state's evidence establishes all of the elements of an offense, and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Davis v. State, 308 Ga. App. 7, 706 S.E.2d 710 (2011).

Charging in rape case.

- In all cases where defendant is charged with rape, and where evidence under any view thereof would authorize conviction for lesser offense necessarily involved in graver charge, the jury should be instructed that defendant may be convicted of the lesser offense. Where all evidence shows either completed offense as charged, or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and court should not charge on such lesser grades. Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981).

Charging entire Code section.

- It is not reversible error to charge entire Code section to the jury even though a portion thereof was not specifically pertinent to the accusation. Zager v. State, 172 Ga. App. 207, 322 S.E.2d 530 (1984); Jackson v. State, 205 Ga. App. 452, 422 S.E.2d 304 (1992).

Defendant was indicted for simple battery only by causing the victim physical harm, but the court instructed the jury that it was "charging the definition of simple battery as it is contained in the Official Code of Georgia Annotated16-5-23"; the instruction was not improper, as although the court recited the entire statutory definition of simple battery, it charged the jury that it should find the defendant guilty if it believed that the defendant had committed simple battery "as alleged in the indictment," the court instructed the jury that the defendant had been indicted for simple battery by "unlawfully and intentionally causing physical harm to the victim, by hitting the victim in the arms, back and face," and the indictment went out with the jury to aid it in deliberations. Hammonds v. State, 263 Ga. App. 5, 587 S.E.2d 161 (2003).

Battery charge not proper given use of deadly weapon.

- Since the indictment alleged assault with a deadly weapon, and the evidence showed that an assault was committed with a knife, aggravated assault was proved beyond a reasonable doubt, and the evidence did not support a finding that the defendant committed a battery. Therefore, the trial court was not required to charge the jury on battery as a lesser included offense. Scott v. State, 208 Ga. App. 561, 430 S.E.2d 879 (1993).

Whether striking person with weapon likely to kill is felony is jury question.

- Whether an assault and battery committed by striking one over the head with a weapon likely to produce death would amount to a felony, in that it was done with intent to kill even though death did not in fact result, would be a question for the jury. Mullis v. State, 196 Ga. 569, 27 S.E.2d 91 (1943).

Assault and battery committed with automobile.

- Assault and battery may be committed by striking another with an automobile intentionally, or by driving the automobile recklessly as to justify a jury in finding that there was a reckless disregard of human life and safety. Henry v. State, 49 Ga. App. 80, 174 S.E. 183 (1934); Maloney v. State, 57 Ga. App. 265, 195 S.E. 209 (1938); Martin v. State, 98 Ga. App. 136, 105 S.E.2d 250 (1958); Bailey v. State, 101 Ga. App. 81, 113 S.E.2d 172 (1960).

It is assault and battery if, under like circumstances, an automobile is driven against another vehicle in which persons are riding, and the collision occasions physical injuries to persons in the vehicle so struck. Henry v. State, 49 Ga. App. 80, 174 S.E. 183 (1934); Maloney v. State, 57 Ga. App. 265, 195 S.E. 209 (1938); Martin v. State, 98 Ga. App. 136, 105 S.E.2d 250 (1958).

Assault and battery on victim.

- When there was no indication that twisting the victim's hand and jerking the victim around were done for any lawful purpose, the jury was amply authorized to find that such acts were offensive and harmful, at least to the feelings and peace of mind of the victim, and that, as such, the actions constituted an assault and battery. Brown v. State, 57 Ga. App. 864, 197 S.E. 82 (1938).

Charging jury as to lesser included offenses.

- When a graver charge, such as rape, necessarily includes an offense of lesser grade, such as assault and battery, particularly if the minor offense is expressly alleged in the indictment, it is the duty of the judge, without request, to instruct the jury as to the principles of law applicable to the minor offense, if, under any view of the evidence, independently of the defendant's statement, a finding that the defendant was guilty of the minor but not the major offense would be authorized. It is, however, not error to fail to instruct the jury as to the minor offense when all the evidence connecting the defendant with the transaction shows that the minor offense was necessarily but an incidental part of the major offense perpetrated. Whitley v. State, 188 Ga. 177, 3 S.E.2d 588 (1939).

Trial court gave the jury the option to find the defendant guilty of the lesser included offense of misdemeanor battery or of felony aggravated battery as indicted, but since the jury rejected the misdemeanor battery offense and found the additional aggravating elements to warrant a felony conviction, the idea that the jury might have reached a different result had they also been charged on the even less culpable misdemeanor of simple battery is not reasonable. Christensen v. State, 245 Ga. App. 165, 537 S.E.2d 446 (2000).

It was unnecessary for the trial court to charge on the lesser offenses of battery and simple battery because the indictment charged defendant and others with malice murder by stabbing the victim to death, and there was no evidence whatsoever that defendant's beating of the victim was a separate act. Lamb v. State, 273 Ga. 729, 546 S.E.2d 465 (2001).

Sexual battery was not a lesser included offense of statutory rape as a matter of law, and because the indictment charging defendant with statutory rape was narrowly drawn and the evidence did not support instructions allowing the jury to find defendant guilty of sexual battery or simple battery, the trial court did not err when it denied defendant's request to instruct the jury that sexual battery and simple battery were lesser included offenses of statutory rape. Neal v. State, 264 Ga. App. 311, 590 S.E.2d 168 (2003).

When the defendant was charged with sexual battery under O.C.G.A. § 16-6-22.1, the trial court properly refused to instruct on simple battery under O.C.G.A. § 16-5-23(a) as a lesser included offense. The defendant claimed that the victim had placed his hand on the outside of her clothing over her vagina, and simple battery required intentional contact. Engle v. State, 290 Ga. App. 396, 659 S.E.2d 795 (2008), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677(2015).

Trial court did not err in failing to charge the jury on simple battery, O.C.G.A. § 16-5-23, as a lesser included offense of cruelty to a child in the first degree, O.C.G.A. § 16-5-70(b), because the evidence did not authorize such a charge; if the jury believed that an accident occurred, no battery was committed, but if the jury accepted the state's evidence, then the jury was authorized to find that the defendant intentionally assaulted the victim, thereby maliciously causing the victim cruel and excessive physical pain. Furthermore, there was no written request to charge on simple battery in the record on appeal. Elrod v. State, 316 Ga. App. 491, 729 S.E.2d 593 (2012).

Trial court did not err in refusing to instruct the jury on simple battery as a lesser-included offense of child molestation as the defendant made no written request for such an instruction and, even if a request had been made, the evidence failed to support such a charge. McMurtry v. State, 338 Ga. App. 622, 791 S.E.2d 196 (2016).

Trial court erred in failing to instruct the jury on simple battery and reckless conduct as lesser-included offenses of malice murder after the jury heard evidence that the victim was left with bruises and hemorrhages on the victim's neck and face. Allaben v. State, 299 Ga. 253, 787 S.E.2d 711 (2016).

Jury questions regarding ejectment of persons from property.

- Upon the defendant's refusal to leave, the prosecutor had a right to eject defendant from the prosecutor's property, but with force not disproportionate to that required to eject the defendant. Whether or not the prosecutor was using force in excess of that necessary, giving in turn the right to the defendant to defend self against an unwarranted assault as to defendant or defendant's property, but not to an extent within itself to constitute an assault and battery on the prosecutor, or whether the defendant was arbitrarily refusing to leave and was committing an unwarranted battery upon prosecutor, were all questions for the jury under the proper instructions of the court. Slaughter v. State, 64 Ga. App. 423, 13 S.E.2d 391 (1941).

When reversible error for judge to fail to charge law regarding assault and battery.

- Under an indictment for assault with intent to rape, which so describes the manner of the commission of the offense as to contain allegations essential to constitute the lesser offense of assault and battery, where the evidence will consistently support a verdict for either offense, it is reversible error for the trial judge to fail to charge, without request, the law with reference to the offense of assault and battery. Barton v. State, 58 Ga. App. 554, 199 S.E. 357 (1938).

On the trial of one charged with the offense of assault with intent to rape, where the indictment is sufficiently broad to include therein the offense of assault and battery, and where the evidence is inconclusive as to whether the assault by the accused was with the intention to gain the woman's consent to sexual intercourse, or whether it was with the intention to overpower her and commit rape, it is error for the court to fail to submit to the jury the law of assault and battery. Reeves v. State, 78 Ga. App. 126, 50 S.E.2d 640 (1948).

When on an indictment for assault with intent to murder, it is alleged that the defendant beat the prosecutrix, and when on the trial of the case the evidence does not demand a finding that there is an intent to kill, but a verdict for the lesser offense of assault and battery would be warranted, it is error, even in the absence of request, to fail to charge the lesser offense of assault and battery. Jackson v. State, 99 Ga. App. 740, 109 S.E.2d 886 (1959).

Failure to charge law of assault and battery not error.

- If a graver charge, such as rape, necessarily includes an offense of lesser grade, such as assault and battery, particularly if the minor offense is expressly alleged in the indictment, it is the duty of the judge, without request, to instruct the jury as to the principles of law applicable to the minor offense, if under any view of the evidence, independently of the defendant's statement, a finding that the defendant was guilty of the minor but not the major offense would be authorized. It is, however, not error to fail to instruct the jury as to the minor offense, when all the evidence connecting the defendant with the transaction shows that the minor offense was necessarily but an incidental part of the major offense perpetrated. In this case, if the defendant was guilty of an assault and battery as charged in the indictment, the defendant was also necessarily guilty of the major offense of rape, as charged, by being a principal in the second degree present and aiding and abetting by the defendant's assault the perpetration of the major offense by the codefendant; thus, there was no error in failing to close on assault and battery. Whitley v. State, 188 Ga. 177, 3 S.E.2d 588 (1939).

When the accused was convicted of assaulting a female, under the age of 14 years, with the intent to rape her, and in the defendant's statement to the jury the defendant denied committing any assault, or any assault and battery, upon the female, while the evidence of the female, if true, proved the felonious assault as alleged in the indictment, omission of the court to charge the jury on the law of assault, or assault and battery, was not error. Finney v. State, 51 Ga. App. 545, 181 S.E. 144 (1935).

When jury should be given discretion to convict of lower offense.

- To constitute the offense of assault with intent to murder, there must be a specific intent to kill. This intent is not necessarily or conclusively shown by the use of a weapon likely to produce death, in a manner likely to produce death. Under the proof in this case, the jury should have been given the discretion to convict of a lower offense included in the higher felony charged, if they believed the evidence did not show a specific intent to kill. Jackson v. State, 99 Ga. App. 740, 109 S.E.2d 886 (1959).

Error in instruction waived.

- Error was deemed waived because the defendant's silence, after the trial court ruled that it would not instruct the jury on simple battery under O.C.G.A. § 16-5-23(b) as a lesser included offense of battery under O.C.G.A. § 16-5-23.1(c), essentially amounted to acquiescence and induced the error. McPetrie v. State, 263 Ga. App. 85, 587 S.E.2d 233 (2003).

Charging entire section when not supported by indictment.

- When defendant was specifically charged with violation of O.C.G.A. § 16-5-23(a)(2), prohibiting the intentional causing of physical harm to another, it was reversible error for the trial court to instruct the jury that the jury could convict the defendant of simple battery even if it only found that defendant violated O.C.G.A. § 16-5-23(a)(1), prohibiting intentional physical contact aimed at insulting or provoking another. Dinnan v. State, 173 Ga. App. 191, 325 S.E.2d 851 (1984).

Charging the entire section when the indictment alleged only that defendant intentionally caused physical harm was reversible error where no remedial instructions were given to limit the jury's consideration to the acts alleged. Owens v. State, 173 Ga. App. 309, 326 S.E.2d 509 (1985).

When defendant was charged with a violation of O.C.G.A. § 16-5-23(a)(2), an instruction which permitted the jury to convict defendant if the jury found that defendant either caused the victim physical harm or made an offensive contact with the victim was reversible error. Lyman v. State, 188 Ga. App. 790, 374 S.E.2d 563 (1988).

Justification defense.

- In a prosecution for simple battery, failure to charge the jury that the state had the burden to prove the absence of the elements of defendant's justification defense was not harmless error. Austin v. State, 218 Ga. App. 90, 460 S.E.2d 310 (1995).

In a prosecution for simple battery, as the defendant denied grabbing or striking the victim, the evidence did not support the defendant's requested justification charge. Burrowes v. State, 296 Ga. App. 629, 675 S.E.2d 518 (2009).

Charge on right to resist unlawful arrest.

- On appeal from convictions entered against the defendant for misdemeanor battery on a police officer, and misdemeanor obstruction of that officer entered against the defendant's mother, a charge that one could resist an unlawful arrest with reasonably necessary force was not required in either case as such was covered by the charge on the elements of the offense; moreover, as to the battery charge, because the defendant testified to never touching the officer, there was no requirement to charge on this affirmative defense. Curtis v. State, 285 Ga. App. 298, 645 S.E.2d 705 (2007).

Authority of Georgia Crime Information Center to maintain records.

- Georgia Crime Information Center is authorized to maintain records of reported crime and, in some instances, to record information identifying persons charged with the commission of crime; however, the center is not authorized to maintain records identifying persons charged with disorderly conduct except when the charge is directly connected with or directly related to certain statutory offenses, including simple battery. 1976 Op. Att'y Gen. No. 76-33.

Am. Jur. 2d.

- 6 Am. Jur. 2d, Assault and Battery, § 1 et seq.

C.J.S.

- 6A C.J.S., Assault and Battery, §§ 84, 85.

ALR.

- Civil liability growing out of mutual combat, 47 A.L.R. 1092.

Mayhem as dependent on part of body injured and extent of injury, 58 A.L.R. 1320.

Mayhem by use of poison or acid, 58 A.L.R. 1328.

Civil liability of one instigating or inciting an assault or assault and battery notwithstanding primary or active participant therein has been absolved of liability, 72 A.L.R.2d 1229.

Liability of physician or hospital in the performance of cosmetic surgery upon the face, 54 A.L.R.3d 1255.

Consent as defense to charge of criminal assault and battery, 58 A.L.R.3d 662.

What constitutes offense of "sexual battery,", 87 A.L.R.3d 1250.

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.