TUCKER v. STATE

BANKE, Judge.

The defendant appeals his conviction for aggravated assault, enumerating as error the sufficiency of the evidence and the admission into evidence of a confession alleged to have been involuntary.

1. The evidence supported a finding that the appellant was placed under arrest by an Atlanta police officer, that he obtained the officer's pistol following a struggle, and that he shot in the direction of the officer as the latter was attempting to flee to safety. Accordingly, the jury was authorized to find the appellant guilty of aggravated assault. See Code Ann. § 26-1302.

2. There is no evidence in the record of a confession, voluntary or involuntary. An investigating officer stated that, after he had apprised the appellant of his Miranda rights, the appellant made a statement accusing a person named Musclehead of firing the shot. The statement was typed by a stenographer as it was made. It was never introduced into evidence but was used by the investigating officer to refresh his recollection while testifying in rebuttal to the appellant's testimony that he had never made a statement to the police.

The statement was not a confession and was not involuntary. The reference to it was not error.

Judgment affirmed. Shulman and Birdsong, JJ., concur.