
    52913.
    RADFORD v. THE STATE.
   Bell, Chief Judge.

The Supreme Court granted certiorari in this case and held that the rules on charging on lesser included offenses announced in State v. Stonaker, 236 Ga. 1 (222 SE2d 354) would be applied prospectively to cases tried after the date of the denial of the motion for rehearing in Stonaker, to wit: January 27, 1976. As this case was tried after the date of the Stonaker decision, but prior to the denial of the motion for rehearing, our prior decision where Stonaker was applied was reversed (Radford v. State, 140 Ga. App. 451 (231 SE2d 365)), and remanded for consideration as to whether the evidence required an instruction on the lesser offense of simple assault pursuant to an oral request. Radford v. State, 238 Ga. 532 (233 SE2d 785). Held:

Decided June 14, 1977.

Hinton R. Pierce, Stanley C. House, for appellant.

Richard E. Allen, District Attorney, Stephen E. Curry, Assistant District Attorney, for appellee.

The state’s evidence shows that defendant committed an aggravated assault with a deadly weapon, a rifle, as alleged in the indictment. Defendant on the other hand by his testimony and the testimony of his brother denied committing any assault. Thus under this posture of the evidence, the issue to be decided by the jury was either one of guilt of the crime charged in the indictment or complete innocence. Consequently, there was no evidence which warranted a charge on simple assault and no error was committed by the trial court in refusing to charge pursuant to an oral request. We again affirm.

Judgment affirmed.

McMurray and Smith, JJ., concur.  