Smith v. State

144 Ga. App. 766 (1978)

242 S.E.2d 363

SMITH v. THE STATE.

55029.

Court of Appeals of Georgia.

Submitted January 17, 1978.

Decided February 8, 1978.

William H. Titus, for appellant.

Joseph H. Briley, District Attorney, Charles D. Newberry, Assistant District Attorney, for appellee.

BELL, Chief Judge.

The defendant was convicted of robbery by intimidation, aggravated assault on a police officer by *767 means of a deadly weapon, a pistol, and simple battery on another police officer. Held:

1. The victim of the robbery on cross examination identified the defendant as the person who had robbed him of $5.00. No objection by defendant was ever made as to the in-court identification of defendant. Consequently, defendant waived any objection he may have had to his in-court identification and will not now be heard to complain on appeal.

2. Defendant argues that the trial court erred in not charging on the defendant's "contentions." In his brief the only "contention" argued is that defendant was acting in self-defense with regard to the aggravated assault and simple battery charges and it was error for the trial court to fail to charge on this defense. Defendant denied pointing a pistol at the police officer victim during an altercation with the latter at the police station. Therefore, the defense of justification was not raised by evidence as regards the aggravated assault. The defendant was accused of committing simple battery by biting another officer during the same altercation. Defendant testified that he bit this officer while acting in his own defense. The defendant made no request to charge on the defense of justification. At the conclusion of the charge the court asked defendant's counsel if he had any exceptions and counsel answered in the negative. The Supreme Court held in Hill v. State, 237 Ga. 523 (228 SE2d 898) that where counsel introduces evidence on a theory of defense, asks for no charge on the defense, and responds to the court that he has no exceptions, the error in the charge was self-induced and will not be a ground for a new trial.

3. The conviction was authorized by the evidence.

Judgment affirmed. Shulman and Birdsong, JJ., concur.