Salisbury v. State, 24058

• Decision Date: 08 June 1967
• Docket Number: No. 24058,24058
• Citation: 223 Ga. 414,156 S.E.2d 48
• Parties: Henry Cook SALISBURY v. The STATE.
• Court: Georgia Supreme Court

Page 48

156 S.E.2d 48

223 Ga. 414

Henry Cook SALISBURY v. The STATE.

No. 24058.

Supreme Court of Georgia.

June 8, 1967.

Rehearing Denied June 22, 1967.

Walter M. Henritze, Jr., Henritze, Baker & Bailey, Atlanta, for appellant.

Lewis R. Slaton, Sol. General, J. Walter LeCraw, J. Robert Sparks, Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Exec. Asst. Atty. Gen., Hardaway Young, III, Atlanta, for appellee.

Syllabus Opinion by the Court

FRANKUM, Justice.

Henry Cook Salisbury was indicted for robbery by use of an offensive weapon. He was convicted and sentenced to thirteen years servitude in the penitentiary. He appealed from the judgment and sentence. Held:

1. The first enumeration of error complaining that the court erred in allowing a witness for the State to testify, over objection, as to the condition of a gun at the time it was found in the possession of the accused three weeks after the commission of the robbery, which gun had been admitted in evidence without objection, is without merit. On cross examination of the witness, counsel for the accused elicited testimony regarding the condition of the gun at the time it was found in the possession of the accused. See Salisbury v. State, 222 Ga. 549, 550(2), 150 S.E.2d 819.

2. The court did not err in refusing to allow counsel for the defendant to elicit testimony on cross examination of a witness to the effect that eyewitnesses had made mistakes with respect to the identification of the perpetrators of separate and independent crimes having no relation to the crime charged against the accused. The second enumeration of error is without merit. Smith v. State, 202 Ga. 851, 867, 45 S.E.2d 267; Quinton v. Peck, 195 Ga. 299(5), 24 S.E.2d 36 Stevens v. State, 49 Ga.App. 248(2), 174 S.E. 718; Hart v. State, 14 Ga.App. 364(7), 80 S.E. 909.

3. The third enumeration of error complains of the following portion of the court's charge to the jury: 'I further charge you, Ladies and Gentlemen, that the burden rests upon the State to prove the material allegations of this indictment to your satisfaction and beyond a reasonable doubt, and if the State does that, then you would be authorized to find the defendant guilty as charged in the indictment. On the other hand, if the State has not carried the burden by proving the material allegations of the indictment to your satisfaction and beyond a reasonable doubt, then you should acquit him. I further charge you, Ladies and Gentlemen, when alibi is relied on as a defense the burden of proof is on the accused to prove the alibi to the reasonable satisfaction of the jury.' Appellant contends that this part of the charge restricted the jury to consideration of the State's evidence alone. Appellant cites and relies upon Salisbury v. State, 221 Ga. 718, 146 S.E.2d 776, where on the first appeal of this case this court held that an excerpt from the charge there complained of was erroneous, prejudicial and harmful to him. The charge now complained of is not the same as the charge dealt with on the first review of this case. It is well established that upon consideration of whether a portion of the charge complained of was erroneous, this court should examine the entirecharge of the court and not the excerpt only to determine whether the court erred in charging the excerpt. 'The charge of the court, like all other deliverances in human language, is to be construed together as one whole, and when one part of it plainly tempers and modifies another, and the ultimate sense and impression are correct, the true standard of practical sufficiency is attained.' Cox v. State, 64 Ga. 374, 377(12). And see Robinson v. State, 207 Ga. 337(2), 61 S.E.2d 475. The trial judge correctly and adequately charged the jury on the question of reasonable doubt, and immediately following the excerpt complained of he charged: 'In determining whether or not you entertain a reasonable doubt, it would be your right to consider all of the facts and circumstances of the case, including any inconsistencies testified to by the witnesses...