Michael v. State

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160 Ga. App. 48 (1981)

286 S.E.2d 314

MICHAEL v. THE STATE.

62378.

Court of Appeals of Georgia.

Decided October 14, 1981.

*49 Calvin A. Leipold, Jr., for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Margaret v. Lines, Candiss Howard, Assistant District Attorneys, for appellee.

BIRDSONG, Judge.

Aggravated assault. The evidence shows that the appellant became enraged when the victim Mr. Carlisle, who was driving ahead of appellant on Peachtree-Dunwoody Road in Atlanta, stopped to make a left turn and apparently created a small traffic jam. Before Mr. Carlisle could make the turn, appellant pulled up to the left of Mr. Carlisle's station wagon, got out of his truck with his Doberman pinscher dog and proceeded to beat up Mr. Carlisle. He told Mr. Carlisle that he and his dog were going to kill him; he kicked him, hit him and either urged or permitted the dog to lunge, jump and chomp at Mr. Carlisle close enough to Mr. Carlisle so that he could feel the dog's breath on his face. A witness saw appellant kick and hit the victim after Mr. Carlisle had rolled, fallen or been pushed down into a ravine. Mr. Carlisle testified that he feared for his life. He was bleeding copiously and suffered several wounds or lacerations on the forehead, chin and inside the mouth. His face was swollen; he suffered trauma to the abdomen and pain in his kidneys and abdomen. He was kept in the hospital a week for observation. Held:

1. The trial court, without jury, found the appellant guilty of aggravated assault, and on a review of the evidence we find no error. Whether or not the Doberman pinscher actually bit Mr. Carlisle, the evidence in this case is sufficient to authorize the trial judge to find that, as used, appellant's hands and feet and his use of the dog were deadly weapons. Harper v. State, 152 Ga. App. 689 (263 SE2d 547).

2. Appellant shows no harm or prejudice in the trial court's sustaining of the state's objections, even assuming the same was error. McKenzey v. State, 127 Ga. App. 304 (1) (193 SE2d 226); and see Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515). A defense question on direct examination which was stated in the presumption that appellant stopped only to help Mr. Carlisle was properly excluded as leading; and moreover was cumulative of other defense testimony in the case.

Judgment affirmed. Shulman, P. J., and Sognier, J., concur.