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State v. Tate

An indictment charging the defendant with the aggravated assault of his wife by using his hands to choke her did not require either a charge that his hands were deadly weapons or a charge on simple assault.

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This State’s appeal seeks review of an order of the Superior Court of Clarke County in which, based on the allegations of a special demurrer, the court quashed Count 2 of an indictment charging Robert J. Tate with aggravated assault. Tate’s cross-appeal seeks review of the same superior court order in which the court denied Tate’s demurrer to Counts 1 and 7 of the indictment, charging him, respectively, with battery under the Family Violence Act and terroristic threats. We find as follows. A03A1164

1. Count 2 of the indictment charges Tate with the aggravated assault of his wife and alleges that Tate, did unlawfully make an assault upon the person of his spouse with his hands, objects which, when used offensively against a person are likely to result in serious bodily injury, by choking her. The trial court found that such allegation was subject to demurrer because: a contrary to the holding in Smith v. Hardrick ,1 the indictment does not allege that Tate’s hands were used as a “deadly weapon”; and b the indictment fails to allege the nature of the simple assault on the victim pursuant to OCGA § 16-5-20 a, i.e., whether Tate was attempting to commit a violent injury to the victim or committing an act which placed the victim in reasonable apprehension of receiving a violent injury. We find that these reasons provide no basis for quashing the aggravated assault count of the indictment.

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