Defendant was convicted of the offense of aggravated assault in that she did unlawfully make an assault upon the person of another with a certain broken beer bottle, a deadly weapon, by cutting the victim on the neck with said bottle. She appeals. The sole enumeration of error contends that the trial court erred in allowing a witness to the altercation to testify as to whether or not the defendant had an opportunity to retreat from the fight, the defendant contending this constituted an opinion as to the issue of self-defense. Held:
The victim contends that this witness was aiding and abetting the defendant at the time by holding her while the defendant picked up the bottle and "charged toward" the victim, cutting her on the neck. The witness, however, denied this, contending that neither the victim nor the defendant was under any physical restraint and clarified the time that elapsed and the distance that was covered when the defendant ran to get the bottle. She was asked on direct examination as to when the defendant went to the trash can, got the beer bottle, broke it on the concrete and the victim was standing near this witness, "did [the defendant] have a chance to go on off?" After objection to the question that it called for a conclusion from the witness, the trial court overruled the objection. The witness asked that the question be repeated. Then, in response thereto, answered, "yes."
Harry N. Gordon, District Attorney, B. Thomas Cook, Assistant District Attorney, for appellee.