Kelly v. State
| Decision Date | 03 April 1978 |
| Docket Number | No. 33302,33302 |
| Citation | 243 S.E.2d 857,241 Ga. 190 |
| Parties | Chester KELLY v. The STATE. |
| Court | Georgia Supreme Court |
Randall M. Clark, Brunswick, for appellant.
W. Glenn Thomas, Jr., Dist. Atty., Jesup, John P. Rivers, Asst. Dist. Atty., Brunswick, for appellee.
Appellant and a co-defendant were indicted by the Glynn County Superior Court for the armed robbery of Phillip A. Morson. Following a jury trial, a verdict of guilty of robbery by intimidation was returned. Judgment was entered on the verdict, and appellant was sentenced to serve fifteen years in prison.
The evidence presented at trial showed that the victim, Phillip Morson, was hitchhiking in Glynn County when appellant and a companion stopped to give him a ride. Morson was driven to a wooded area near a cemetery and forced at knife-point to surrender his wallet to appellant. Appellant removed fifteen dollars from the wallet; returned the wallet to Morson; and drove away with his companion, leaving Morson in the woods.
1. Appellant challenges the constitutionality of Code Ann. § 38-302, which provides, "When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." Appellant argues that the statute on its face denies him his Sixth Amendment right to confrontation. The constitutionality of the code section was upheld on this ground in Harrell v. State, 241 Ga. 181, 243 S.E.2d 890 (1978). The enumeration of error is without merit.
2. Appellant complains that the trial judge erred in instructing the jury it could find appellant guilty of robbery by intimidation. There was evidence to show that appellant committed a robbery by use of an offensive weapon. Robbery by intimidation is a lesser included offense of robbery by the use of an offensive weapon. Therefore, the jury was authorized to return a verdict of robbery by intimidation. Holcomb v. State, 230 Ga. 525, 198 S.E.2d 179 (1973); Brown v. Caldwell, 231 Ga. 677, 203 S.E.2d 542 (1974). It was not error for the trial judge to so charge.
3. Appellant complains that the trial judge erred in failing to grant his motion for continuance. A motion for continuance addresses itself to the sound discretion of the trial judge, and that exercise of discretion will not be disturbed absent a showing of abuse. Code Ann. § 81-1419; Campbell v. State, 231 Ga. 69, 200 S.E.2d 690 (1973); Marshall v. State, 239 Ga. 101, 236 S.E.2d 58 (1977). We find no error in the trial judge's denial of appellant's motion.
4. Appellant complains that the trial judge erred in failing to give his request to charge on the presumption of innocence. The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principles, is not grounds for reversal. Young v. State, 226 Ga. 553(3), 176 S.E.2d 52 (1970); Fox v. State, 238 Ga. 387(2), 233 S.E.2d 341 (1977). The trial judge gave ample instructions on the presumption of innocence, and it was not error to fail to charge...
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Devier v. State
...language requested, where the charge given substantially covers the same principles, is not grounds for reversal." Kelly v. State, 241 Ga. 190 (4), 243 S.E.2d 857 (1978). Devier additionally contends the court's instructions on mitigating circumstances were The court charged as follows: "No......
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Felker v. State
...beyond a reasonable doubt that a crime was in fact committed ...") This enumeration of error is therefore meritless. Kelly v. State, 241 Ga. 190 (4), 243 S.E.2d 857 (1978). 4. Appellant's first and third enumerations attack the sufficiency of the evidence. He was convicted of murder, false ......
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Castell v. State
...language requested, where the charge given substantially covers the same principles, is not grounds for reversal." Kelly v. State, 241 Ga. 190(4), 243 S.E.2d 857 (1978). Nor did the trial court err by refusing to give the defendant's charge pertaining to the § (b)(6) aggravating circumstanc......
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King v. State
...given in their totality substantially and adequately cover the principles contained in the requested charge."); Kelly v. State, 241 Ga. 190, 191-192(4), 243 S.E.2d 857 (1978). 41. A trial court is not required to charge a jury on the consequences of the jury's failure to reach a unanimous v......