Cornwell v. State , 193 Ga. App. 561 ( 1989 )

Carley, Chief Judge,

concurring specially.

I concur fully in Divisions 1, 3, and 4 of the opinion and in the judgment of affirmance. However, I cannot agree with the majority’s overruling of Carter v. State, 162 Ga. App. 44 (2) (290 SE2d 143) (1982). The majority concludes that Carter is inconsistent with Bundren v. State, 247 Ga. 180 (2) (274 SE2d 455) (1981) which holds that, in a case involving aggravated assault upon a police officer, “the jury must be charged that knowledge is an essential element to the crime.” Bundren v. State, supra, 182. In Bundren, the trial court did not charge that knowledge was an element of the crime. Not only is Carter v. State, supra, not inconsistent with Bundren, it specifically recognizes Bundren as the controlling authority and points out that in Bundren, the “charges were deficient in that neither made any mention whatsoever of the knowledge element.” Carter v. State, supra, 45. The charge which was attacked in Carter was approved as being in compliance with Bundren because it was “a nearly verbatim reading of the statute [OCGA § 16-5-21 (c)].” (Emphasis supplied.) Carter v. State, supra, 45. In the instant case, the trial court’s charge was totally a verbatim reading of the statute. Unlike Bundren and Britt v. State, 184 Ga. App. 445 (2) (361 SE2d 710) (1987), also relied upon by the majority, the trial court clearly and unequivocally charged the jury as to the requirement of knowledge as an element of the crime of aggravated assault upon a police officer. In this case, the trial court’s charge is in conformity with Carter. Carter correctly states the law and should not be overruled. It follows that there was no error in the trial court’s charge with regard to the essential elements of the offense of aggravated assault upon a police officer.

I am authorized to state that Presiding Judge Deen and Judge Birdsong join in this special concurrence.