Appellant was tried before a jury on a two-count indictment. Count One alleged, in relevant part, that appellant "did unlawfully and with malice aforethought cause the death of [the victim], a human being, by blows to the head . . . ." Count Two alleged, in relevant part, that appellant "did, while in the commission of a felony, to wit: Aggravated Assault, cause the death of [the victim], a human being by beating said human being about the head . . . ." The trial court, without request, charged on aggravated assault with a deadly weapon as a lesser included offense. The jury returned a verdict of guilty of aggravated assault. After the denial of his motion for new trial, appellant filed this appeal from the judgment of conviction and sentence entered on the jury's verdict of guilty.
Appellant's sole enumeration of error is that "[a]s the indictment failed to charge a necessary element of the offense of aggravated assault, the offense of which appellant was found guilty was not [a] lesser included [offense] of the offense charged." It is unclear from this enumeration exactly how it is that appellant contends the trial court erred. The record shows that appellant filed neither a pre-trial demurrer to the indictment nor a post-judgment motion in arrest of the judgment of conviction. Compare Phillips v. State, 240 Ga. 453 (241 SE2d 203) (1978)
; Rushin v. State, 180 Ga. App. 276 (1) (348 SE2d 910) (1986)
; Ponder v. State, 121 Ga. App. 788 (175 SE2d 55) (1970)
; Martin v. State, 96 Ga. App. 557
, 558 (1) (100 SE2d 645
) (1957). Accordingly, appellant's contention presumably is that it was error for the trial court to charge on aggravated assault with a deadly weapon as a lesser included offense of malice or felony murder.
The evidence clearly authorized a finding that appellant had beaten the victim about the head with either a rock or with his fists and, thus, had committed an aggravated assault with a deadly weapon. See Harper v. State, 152 Ga. App. 689
, 691 (2) (263 SE2d 547
) (1979). It follows that the trial court correctly charged on aggravated assault with a deadly weapon as a lesser included offense of murder. See generally Hall v. State, 163 Ga. App. 515 (1) (295 SE2d 194) (1982)
Spencer Lawton, Jr., District Attorney, for appellee.