Smith v. State

Smith, Judge.

We affirm appellant’s conviction of two counts of aggravated assault.

1. The general grounds are without merit. Both victims positively identified appellant as the perpetrator.

2. The failure, without request, to deliver a charge on alibi was not error. The evidence established that the crime occurred in the woods of Flatrock Park in Muscogee County. The testimony appellant asserts as supportive of an alibi defense was his testimony showing he stopped to "go to the bathroom” in those same woods at the time of the crime. Contrary to his contention, neither that testimony nor any other evidence in the record suggests the impossibility of his presence at the scene of the crime. See Parrott v. State, 133 Ga. App. 931 (213 SE2d 77) (1975).

3. It was not reversible error to fail to charge, without request, on the law of impeachment. Tanner v. State, 228 Ga. 829 (8) (188 SE2d 512) (1972).

4. There being direct evidence showing appellant’s commission of aggravated assault, it was not error to fail to charge, without request, on circumstantial evidence. House v. State, 232 Ga. 140 (5) (205 SE2d 217) (1974). Neither do we find reversible error in the trial court’s failure to deliver an instruction, without request, defining "direct evidence.” Starnes v. State, 45 Ga. App. 238 (164 SE 89) (1932).

5. This court will not consider appellant’s objections to the identification testimony made for the first time on appeal. Clenney v. State, 229 Ga. 561 (3) (192 SE2d 907) (1972).

6. As appellant made no proffer of the testimony he sought to elicit, we find no reason to reverse the judgment for the trial court’s exclusion of certain testimony. Mahone v. State, 120 Ga. App. 234 (3) (170 SE2d 48) (1969).

Submitted June 12, 1979 Decided October 1, 1979 Rehearing denied October 18, 1979 Ben B. Philips, for appellant. William J. Smith, District Attorney, Richard C. Hagler, for appellee.

7. Contrary to appellant’s opinion, the trial court did not make an improper comment prejudicing the jury against his cause.

8. Finally, notwithstanding appellant’s contention, we conclude that he received effective assistance of counsel at trial. See Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974).

Judgment affirmed.

Quillian, P. J., and Birdsong, J., concur.