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DAVID HARBIN v. STATE OF MISSISSIPPI

OCTOBER 02, 1985

DAVID HARBIN
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, P.J., ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This aggravated assault appeal turns largely on whether the accused was of right entitled to have the jury consider whether he might be guilty of the lesser included offense of simple assault. On the evidence the injuries sustained by the assault victim may not reasonably be characterized as less than" serious bodily injuries ". Moreover, the havoc wrought by the defendant was such that it may not be seriously thought that he acted with less than" extreme indifference to the value of human life ". We affirm.

 II.

 A.

 On Saturday night, May 8, 1983, around 10:00 David Harbin, the Defendant below and Appellant here, was at the Zodiac Club in Greenville, Mississippi. David, age 22 at the time, called his girlfriend, Linda Faye Overstreet, who was at

 home watching TV. Linda was 17 and had been David's girlfriend for about two years. Although the two were not married, Linda had a child by David.

 After the phone call Linda and a friend of hers, Audrea Adams went to the Zodiac. David and Linda began arguing and the three went outside. David was ready to go and wanted Linda to go with him but she refused. He began pulling her and hitting her behind her head" as hard as he could ". In response to this Linda turned around and bit him in the chest. He in turn threw her on the ground, sat on her, and told her he was going to kill her. He got up and Linda began running away. David found a brick, ran after Linda, butted her with his head in her side and then hit her" as hard as he could "with the brick. Linda found herself on the ground with David hitting her in the back of the head with the brick, she could not remember how many times. People from the Zodiac separated the two and took her back into the club.

 The police came and Linda was taken to the hospital and treated for cuts and bruises on the back of her head. She had to have stitches in two different places but returned home that night. On Sunday and again on Monday, Linda returned to the hospital, at which time x-rays were taken, her mother was informed that she was bleeding on the inside and that she would have to have surgery. According to Linda the surgery was for" a busted liver ". She was in the hospital for eighteen days and her hospital bills were somewhere in the vicinity of $13,000.00 or $14,000.00.

 Linda's testimony concerning the incident was substantiated by the testimony of her friend, Audrea Adams, who witnessed the fight outside the Zodiac Club. Audrea testified that," He was hollering, `I want to find me a bottle so I can kill her.

 interviewed David in his office in connection with the incident. This interview took place on May 11, 1983. Captain Wynn testified that" he said that she cut him on his hand and I looked at both of his hands and I could see a small cut on his right little finger. "

 David Harbin's version of the facts was that the serious injury that Linda sustained was probably a result of their falling together on the railroad tracks. He said that he at no time hit her in the stomach or in the side. He did not remember hitting her with the brick and said that she possibly hurt her head when she fell on the railroad track. The uncontradicted facts of her injury and the nature and course of medical care required, however, suggest otherwise.

 Harbin was formally charged with aggravated assault upon Linda Faye Overstreet in violation of Miss. Code Ann. 97-3-7 (2) (a) in an indictment returned by the Washington County Grand Jury on October 14, 1983.

 On April 26, 1984, the case was called for trial, at the conclusion of which the jury found that Harbin was ...


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