Joiner v. State

147 Ga. App. 526 (1978)

249 S.E.2d 335

JOINER v. THE STATE.

56562.

Court of Appeals of Georgia.

Submitted September 7, 1978.

Decided October 12, 1978.

Joseph C. Kitchings, for appellant.

J. Lane Johnston, District Attorney, John Roberts Turner, Assistant District Attorney, for appellee.

McMURRAY, Judge.

Defendant was indicted, tried and convicted for aggravated assault (with intent to rape). He was sentenced to serve a term of 10 years imprisonment. No timely appeal was filed, but on application for writ of habeas corpus defendant was granted an out-of-time appeal. Held:

1. A female employed in a country church office, while talking on the telephone, saw a man approach who told her he wanted to talk with her. She discontinued her telephone conversation, thinking the man was a workman and invited him into the office. The defendant (identified by the victim after his arrest) started asking questions, and the victim testified, "He grabbed my arm and we began to tussle." She then swung a curtain rod at him and he threw her on the floor. She further testified the defendant tried to undo the zipper on some blue pants she was wearing. She then grabbed a coke bottle and swung it at the defendant. He then told her he would leave her alone, and he left. The victim then called for help and other witnesses corroborated her testimony as to the attempted rape. When the defendant was arrested, he had a "knot up on the side of his head," or "bump on the side of his head." This evidence was ample to support the verdict. Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131).

2. Defendant here contends the trial court erred in failing to charge on abandonment of the criminal attempt as found in Code Ann. § 26-1003, contending there was evidence to warrant such a charge. However, abandonment is an affirmative defense or a renunciation of the criminal purpose. Here the crime was already completed *527 when the evidence showed that he abandoned his efforts to have sexual intercourse with her, that is, that he would leave her alone. This is insufficient evidence to require a charge on abandonment of criminal attempt.

Judgment affirmed. Quillian, P. J., and Webb, J., concur.