Aiken v. State
| Decision Date | 05 November 1970 |
| Docket Number | No. 25956,25956 |
| Citation | 178 S.E.2d 202,226 Ga. 840 |
| Parties | Judson AIKEN v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The indigent appellant has been furnished the record which the law requires to be made in a felony case, and there is no merit in his contention that the record furnished him is incomplete.
2. The charge on the inference which arises from the possession of recently stolen property, unaccounted for, is not subject to the complaints made against it.
3. No error is shown in allowing the in-court identification of the appellant. There is no merit in the contention that the case should have been dismissed because the appellant was not represented by counsel at the line-up.
4. It was not error to submit to the same jury the issue of guilt or innocence and the determination of the sentence to be imposed.
Miles J. Alexander, Richard R. Cheatham, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Tony H. Hight, Joel M. Feldman, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, William R. Childers, Jr., Asst. Attys. Gen., Atlanta, for appellee.
Judson Aiken was convicted on four counts of robbery by the use of an offensive weapon, and a life sentence was imposed on each count. He appeals from his conviction and sentence, and from the denial of his motion for new trial.
The appellant was charged with being one of the three persons who robbed the Northside Loan Office, a pawn shop, and customers who came into the store while the robbery was in progress. The robbery was accomplished by the use of guns, and by physical force.
1. The appellant is an indigent and he was furnished the transcript of his trial by the State. The first enumeration of error is the failure of the court to require the court reporter to record and transcribe the opening statements of the court and counsel, the closing arguments of counsel, and the voir dire of the jury, in order that they might be transmitted by the clerk to this court. On motion for additional transcript, the judge ordered that the transcript of the voir dire be transmitted to this court, but denied the request that the argument be transmitted, because it was not recorded and could not be recalled.
After the additional transcript was furnished to this court, counsel for the appellant contends that the transcript is deficient in not containing 'the opening statements of the court and counsel and the closing arguments of counsel,' and 'either the State's or defendant's challenges of the jury panel or the trial court's rulings thereon.'
Counsel representing the appellant on appeal did not represent him at his trial. Counsel does not assert that any error occurred, of which he has knowledge, during the proceedings which were not recorded, but contends that he can not properly represent appellant unless he is furnished with the transcript of the entire proceedings so that he can determine whether any error occurred.
The Appellate Practice Act (Ga.L.1965, pp. 18, 24; Code Ann. § 6-805) provides that: '(a) In all felony cases, the transcript of evidence and proceedings shall be reported and prepared as provided in Code section 27-2401, or as may hereafter be provided by law * * * (d) Where a trial in any civil or criminal case is reported by a court reporter, all motions, colloquies, objections, rulings, all evidence-whether admitted or stricken on objection or otherwise-copies or summaries of all documentary evidence, the charge of the court, and all other proceedings which may be called in question on appeal or other post-trial procedure shall be reported, and where the report is transcribed, all such matter shall be included in the written transcript, * * * Where matters occur which were not reported, such as objections to oral argument, misconduct of the jury, or other like instances, the court, upon motion of either party, shall require that a transcript of these matters be made and included as a part of the record.'
Code § 27-2401 provides that: 'On the trial of all felonies the presiding judge shall have the testimony taken down, and, when directed by the judge, the court reporter shall exactly and truly record, or take stenographic notes of, the testimony and proceedings in the case, except the argument of counsel.'
Construing Code Ann. § 6-805 with Code § 27-2401, it would appear that in a felony case all testimony and proceedings in the case must be reported, except the argument of counsel. Counsel for the appellant asserts that since the argument of counsel 'may be called in question on appeal' (Code Ann. § 6-805), it is a part of the proceeding which must be reported and furnished to an indigent appellant.
In order to make an improper argument of State's counsel the subject matter of review, it is necessary that some objection be made at the trial. Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221; Moore v. State, 222 Ga. 748, 755, 152 S.E.2d 570. Where objection is made, and upon motion of the accused, the court shall require that a transcript be made. Code Ann. § 6-805. Appellant was represented by counsel at his trial, and we must assume that if any objection was made to oral argument, counsel would have requested that it be transcribed, and the court would have granted the motion. We therefore assume that no objection was made to any argument of State's counsel, and in that event, no assignment of error could be made on the argument.
We know of no 'opening statement' of the court except the formalities of calling the case. Should any unusual statement have been made, which was prejudicial to the appellant, we must assume that objection would have been made and the proceeding would have been transcribed.
Counsel for the appellant apparently assumes that 'challenges of the jury panel' were omitted from the additional transcript transmitted to this court, but he does not assert that he has knowledge of any such challenges. We must assume that the reporter has transcribed the entire proceedings pertaining to the voir dire of the jury on which appellant might assign error.
The appellant has been furnished the entire transcript which the law requires to be made in any felony case, and there is no merit in the first enumeration of error.
2. There was evidence of the possession by the appellant of personal property identified as being a part of that stolen from Northside Loan Office. The trial judge charged the jury on the inference arising from the possession of stolen property as follows: 'I charge you that if the crime of robbery, or crimes of robbery should have been committed as charged in this bill of indictment, and certain personal property as set forth in the bill of indictment was stolen as a result of such crime, and if recently thereafter the defendant should be found in possession of the stolen property, or any of the stolen property, that would be a circumstance, along with all the other evidence adduced, from which the jury may infer guilt as to the particular counts in the indictment which charges the theft of that particular property, if you see fit to do so, unless, of course, the defendant should make an explanation of his possession of the stolen property consistent with his plea of innocence which, again, is a question for you, the jury, to determine.'
The second enumeration of error asserts that this charge was error for several reasons.
(a) It is contended that the charge did not correctly state the law on the subject because the statement, 'unless, of course, the defendant should make an explanation of his possession of the stolen property consistent with his plea of innocence,' placed the burden on the appellant to personally come forward with an explanation of his possession of the stolen property.
Appellant cites Gravitt v. State, 114 Ga. 841, 40 S.E. 1003, 88 Am.St.Rep. 63, in support of this position. In the Gravitt case it was held that it was error for the court to make the statement in his charge on the possession of stolen goods that, 'if he fails to account for it to the satisfaction of the jury, the law presumes he is the guilty party.' The error pointed...
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