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FF. PROVOCATION See also OFFENSES – HOMICIDE – PROVOCATION , below Christensen v. State, 245 Ga.App. 165, 537 S.E.2d 446 (July 14, 2000). Aggravated battery conviction affirmed; trial court properly declined to charge jury on opprobrious or abusive language as a defense. “Opprobrious or ‘abusive language’ can be a justification for simple battery. [Cit.] However, Christensen was not charged with simple battery, and simple battery was not a lesser included offense in this case. Accordingly, ‘abusive language’ is not an applicable defense. ‘By its clear terms, the defense is limited to the offense of simple battery; it does not apply to the offense of battery.’ Danzis v. State, 198 Ga.App. 136, 137(3), 400 S.E.2d 671 (1990). Further, Christensen specifically testified that he hit the victim, not because of any abusive language used, but because he thought the victim was going to hit him. … Without any claim whatsoever by Christensen that he committed the offense because of abusive language, he was not entitled to a jury charge on abusive language as a justification for his committing the offense.” Barnes, joined by Mikell, dissents, arguing that simple battery should also have been charged as a lesser-included offense. GG. REPEAL/ABATEMENT Hafez v. State, 290 Ga.App. 800, 660 S.E.2d 787 (March 21, 2008). Trial court properly denied defendants’ general demurrer. Defendants were charged with cruelty to children, second degree, under OCGA § 16-5-70(b). After indictment, the code section was changed to insert a new second degree child cruelty offense as subsection (b), reclassifying defendants’ charged offense as third degree child cruelty and re-codifying it as subsection (c). “Citing Robinson v. State, 256 Ga. 564 (350 S.E.2d 464) (1986), [defendants] argue that they were tried under an indictment that charged them with a violation of law that had been repealed without a savings clause by the General Assembly prior to their trial. But Robinson is not controlling here. As our Supreme Court explained in Daker v. Williams, 279 Ga. 782 (621 S.E.2d 449) (2005): ‘In general, “(w)hen a statute making described conduct a crime is repealed prior to final judgment on a conviction, the repeal ends the prosecution if the legislature has not provided otherwise in a saving clause.” Robinson v. State, 256 Ga. 564, 565 (350 S.E.2d 464) (1986). See also Gonzalez v. Abbott, 262 Ga. 671 (425 S.E.2d 272) (1993); Bassett v. Lemacks, 258 Ga. 367 (370 S.E.2d 146) (1988). In other words, if, due to a statutory amendment prior to the entry of a final judgment on a conviction, the actions for which a defendant was indicted no longer constitute a crime, the prior conviction is abated in the absence of a savings clause providing otherwise. On the other hand, a prosecution may continue towards a final disposition where the actions for which the defendant was indicted were not decriminalized by the subsequent statutory amendment. A conviction may stand if it was authorized both under the original definition of the crime and the revised definition contained in the statutory amendment.’ Id. at. 784-785. In this case, the statutory amendment did not decriminalize the actions for which the defendants were indicted. The result of the amendment here was simply to move the language formerly found in subsection (c) of OCGA § 16-5-70 to subsection (d) and change the conduct described therein from second degree to third degree child cruelty. Ga. L.2004, p. 57, § 3. The conduct for which defendants were indicted and convicted remained a crime both before and after the enactment of the statutory amendment. Accordingly, this enumeration is without merit.” Hanson v. State, 271 Ga. 145, 518 S.E.2d 111 (May 3, 1999). Trial court erred in denying defendant’s motion to dismiss indictment for felony possession of less than an ounce of marijuana where the legislature repealed that offense while the indictment was pending. “In Robinson v. State, 256 Ga. 564, 350 S.E.2d 464 (1986), this Court held that the repeal of a criminal statute abated prosecutions that had not reached a final disposition. The general assembly may prevent abatement of pending prosecutions by including a savings clause in the repealing legislation. Id. at 565, 350 S.E.2d 464. The legislature did not include a savings clause in amending OCGA § 16-13-2. Instead, it clearly expressed its intent that possession of less than an ounce of marijuana is a misdemeanor offense. Ga. L.1997, p. 1377. Therefore, the trial court erred in denying Hanson’s motion to dismiss the indictment against him for felony possession of less than an ounce of marijuana.” Three justices dissent: “In this case, there has been no redefinition of the offense charged. Possession of one ounce of marijuana remains a criminal act under the laws of this state. The only change has been a decrease in the level of punishment for the commission of that crime. In cases such as this, ‘it is generally held that an offender who violated the statute at the time it carried the heavier penalty may be punished under the amended law; ... the amendment does not serve to free him from all punishment.’ 1 Lafave & Scott, Substantive Criminal Law § 2.5(a), p. 150 (1986).” “[Defendant] is charged with possession of less than one ounce of marijuana, and to suggest that he has been indicted for ‘felony’ possession of the amount of contraband is to confuse the prosecuted act with the punishment which could be imposed upon conviction.” HH. RESIST UNLAWFUL ARREST, RIGHT TO Merneigh v. State, 242 Ga.App. 735, 531 S.E.2d 152 (March 13, 2000). Shoplifting and aggravated assault convictions