Griffith v. State

188 Ga. App. 789 (1988) 374 S.E.2d 359

GRIFFITH
v.
THE STATE.

76743.

Court of Appeals of Georgia.

Decided October 14, 1988.

Roger L. Curry, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

BENHAM, Judge.

Appellant was indicted for child molestation, but was convicted only of simple battery. His sole ground for appeal is the denial of his motion in arrest of judgment, in which he contended that since simple battery is not a lesser included offense of child molestation, and he was not indicted for simple battery, the conviction was not authorized. The record shows that the charge on simple battery was one of the requests to charge that appellant submitted to the trial court. When the issue was discussed at the charge conference, the State indicated some reluctance regarding the giving of that charge, but the trial court said that since a "specific request" had been made by the defense to give the charge, the court would do so.

While it is true that simple battery is not, as a matter of law, a lesser crime included in the crime of child molestation (State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976)), it is equally true that induced error cannot be complained of on appeal. Cole v. State, 156 Ga. App. 6 (5) (274 SE2d 64) (1980). This is a case of induced error; therefore, we affirm the judgment.

Judgment affirmed. McMurray, P. J., and Pope, J., concur.