Adams v. State, 52642

• Decision Date: 28 September 1976
• Docket Number: No. 52642,No. 1,52642,1
• Citation: 229 S.E.2d 142,139 Ga.App. 670
• Parties: R. L. ADAMS v. The STATE
• Court: Georgia Court of Appeals

Page 142

229 S.E.2d 142

139 Ga.App. 670

R. L. ADAMS v. The STATE.

No. 52642.

Court of Appeals of Georgia, Division No. 1.

Sept. 28, 1976.

Floyd M. Buford, Macon, Alfred D. Fears, Jackson, for appellant.

E. Byron Smith, Dist. Atty., Barnesville, W. Hal Craig, Asst. Dist. Atty., McDonough, for appellee.

STOLZ, Judge.

The defendant appeals from his conviction of voluntary manslaughter.

1. The trial judge erred in sustaining the state's objection to defense counsel's question of prospective juror, '. . . do you think a person has a right to defend himself if he's being attacked or assaulted?' This was not such a technical legal question as would be inappropriately asked of or answered by a layman-juror. Cf. Lundy v. State, 130 Ga.App. 171(2, a), 202 S.E.2d 536 and cits.; Reynolds v. State, 231 Ga. 582(2), 203 S.E.2d 214 and cits.

2. It was error, under the circumstances, to permit the district attorney, after he claimed entrapment, to cross examine state's witness Gaines for impeachment purposes with regard to prior inconsistent statements made to the sheriff and tape recorded. 'While the general rule is that a party cannot show entrapment unless the witness has made the contradictory statement to him or for the purpose of being communicated to him, an exception exists where the statement is made to a law enforcement agent and by him turned over to the persons conducting the trial on behalf of the State. Sparks v. State, 209 Ga. 250(2), 71 S.E.2d 608.' Cain v. State, 113 Ga.App. 477, 481(4), 148 S.E.2d 508, 511. In the case sub judice, however, the district attorney waived his right to claim entrapment by failing to assert it when the witness first made the statements allegedly inconsistent with her prior statements. On the other hand, however, the defendant then waived his objection to the state's cross examination of its witness by failing to timely assert his objection. Thus, no reversible error has occurred and is not likely to recur on the new trial to which we hold the defendant to be entitled.

3. The judge charged the jury as follows: 'Now, when witnesses appear and testify, they are presumed to speak the truth but if you find there is a conflict in the testimony, it would be your duty, as Jurors, to reconcile that conflict, if you can do so without imputing perjury to any person who has testified. However, if after considering all of the evidence, you find it in conflict and cannot reconcile it, then it would become your duty as Jurors to adopt that testimony and evidence which to you is the most reasonable, the most probable and the most truthful.' The appellant contends that the judge, by charging the jury as aforesaid, in effect instructed them that they might disbelieve uncontradictory testimony, and suggested to them that where the testimony of witnesses conflict in any particular, all of one must be received and all of the other must be rejected.

We disagree. 'The presumption is that jurors are selected and drawn according to law. Wheeler v. State, 42 Ga. 306, i.e., 'upright and intelligent.' (Emphsasis supplied.) Code § 59-106.' Guy v. State, 138 Ga.App. 11, 14(5), 225 S.E.2d 492, 494. We do not believe that intelligent jurors would believe that they would have to either believe or disbelieve all of any witness' testimony, or that the charge complained of has such a connotation. Cf., Patterson v. State, 233 Ga. 724, 728(5), 213 S.E.2d 612.

4. It...