Opinion
64109.
DECIDED JUNE 22, 1982.
Probation revocation. Habersham Superior Court. Before Judge Gunter.
Douglas W. McDonald, T. Andrew Dowdy, for appellant.
V. D. Stockton, District Attorney, Michael H. Crawford, Assistant District Attorney, for appellee.
The defendant appeals the revocation of his probation. Held:
1. It is contended that the evidence was insufficient to sustain the judgment. In this connection it is now argued that at the revocation hearing there was no evidence that the defendant used a deadly weapon, a knife. However, at the commencement of the hearing, counsel for defendant conceded the facts concerning the aggravated assault, to wit: that the defendant cut his brother's nose with a knife, which cut required eleven stitches. The sole issue was whether the defendant's acts were justified. The brother admitted that he started the fight and that he carried "brass knucks," which the defendant knew, but the brother denied using the "brass knucks" in the fight. The brother testified: "I got cut, and I started running down the road."
In Hooks v. State, 138 Ga. App. 539 ( 226 S.E.2d 765), it was held: "The mere fact that the defendant did not initiate the fight does not necessarily show that he was not guilty of aggravated assault with a knife, a deadly weapon." Here, the evidence did not demand a finding of justification. Hence, the trial judge did not err in revoking defendant's probation.
2. The remaining enumeration of error is without merit.
Judgment affirmed. Shulman, P. J., and Carley, J., concur.