Balark v. State, s. 33006-33009
| Citation | 59 S.E.2d 524,81 Ga.App. 649 |
| Decision Date | 09 May 1950 |
| Docket Number | No. 2,Nos. 33006-33009,s. 33006-33009,2 |
| Parties | BALARK v. STATE. FRAZIER v. STATE. ROWE v. STATE. WHITE v. STATE |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
1(a). Where the evidence authorized the jury to find that the defendant in a criminal case intended to commit a particular act, the requirement of Code, § 26-201 that there must be a union or joint operation of the act and intent is met. It is not necessary for the State to show, in order to meet this requirement, that the defendant also intended to violate the law.
(b) Although a written request to charge the jury is properly adjusted to the evidence, it may still be refused where the matter contained therein has been sufficiently covered by the general charge.
(c) Where the court charges the jury generally to consider all the evidence and base their verdict thereon, it is not necessary, even when requested, to point out specific evidence offered in behalf of the defendant and charge the jury particularly to consider such evidence.
(d) It is not error for the trial court to refuse to give in charge to the jury a request which is imperfect and fails to state an accurate principle of law properly adjusted to the issues of the case on trial.
(2) As to the defendants Balark, Frazier and White, the evidence authorized the verdict, and, having the approval of the trial court, will not be reversed by this court. As to the defendant Rowe, the evidence is insufficient to support the verdict and the judgment as to this defendant is therefore reversed on the general grounds.
Toby Balark, Richard Frazier, Harry Rowe and Marion White, the respective plaintiffs-in-error in these cases, were tried and convicted in the City Court of Savannah for a violation of Code, § 45-512, which provides in part as follows: The men were arrested on May 9 at approximately the same time, in separate boats, charged with being inside the waters of Ossabaw Sound, an estuary approximately two miles long and three and a half miles wide between Wassaw and Ossabaw Islands. The undisputed testimony established the line dividing the inside from the outside waters as an imaginary line projected from two markers located on the north tip of Ossabaw Island, and running 220 feet to the land side of a buoy located in the channel, which line was actually somewhat inside the actual projection of a line between the outside shores of the two islands. Captain Bell, an employee of the State Game and Fish Commission and a witness for the State, testified substantially that his boat was located in Bradley Creek on Ossabaw Island when he saw the boats heading in towards the prohibited area; that he went into the sound to a point where he could line up the range with the buoy; that the first boat was one and one-half miles away and within the prohibited area; that visibility was good and the boats moving very slowly; that he went on up and west into the sound and as he got back to the line the boats were coming out; that Rowe's boat was operating approximately on the line but his net was still on the inside; that White's boat was about 300 yards inside; that Frazier's boat was inside following Rowe's, and that Balark's boat was approximately a mile inside. This testimony was confirmed by another employee, J. C. Mikell, who was in the boat with Bell and who stated that Rowe and White were 'approximately on the line'. As to the 'Pocahontas', Rowe's boat, he stated, The third witness, who was patrolling the area with an airplane at the time, identified the boats of Balark, White and Frazier as being in the prohibited area but made no mention of Rowe's boat. Rowe in his statement placed his boat as outside that of the other defendants, and this was never denied. All the defendants made statements denying that they were inside the prohibited area.
To the judgments based on the verdicts of guilty the defendants filed identical motions for new trials on the general grounds, which were later amended by adding 12 special grounds numbered 6-17, inclusive, and the overruling of these motions as amended are assigned as error. Identical briefs were filed in each case, and they are here considered to together.
Hennessy & Hennessy, Savannah, for plaintiffs in error.
Andrew J. Ryan, Jr., Sol. Gen., Sylvan A. Garfunkel, Asst. Sol. Gen., Herman W. Coolidge, Asst. Sol. Gen., Savannah, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts).
1 (a). Special grounds 6-16, inclusive, of the amended motions for new trials deal with the failure of the trial court to give certain charges to the jury as presented by timely written request, and ground 17 assigns error on the failure to give the whole in charge as requested on the ground that the court followed a pattern of ignoring all requests adjusted to the evidence and chose to charge only abstract principles of law, to the confusion of the jury. Special ground 6 complains of the refusal to give the following request in charge: 'If you shall find that the defendants had been fishing in the sea and in the outside waters and merely went into the inside waters to turn around and not primarily to fish in the inside waters, then considering all such circumstances, it may be within your province to find that the defendants had no intention of fishing in the inside waters and in the event that you find that there is lack of such intention and therefore no crime, you should then acquit the defendants.' Ground 12 contains a similar request to charge that the defendants would not be guilty if they simply drifted into the inside waters. The request in ground 13 refers to lack of intention in case the defendants crossed the line through inadvertence 'with no intention of fishing deeply into the sound.'
The intent referred to in Code, § 26-201 is intent to do a specific act in violation of law, rather than an intent to violate the law itself, or an intent to violate it in one degree but not in another degree. The evidence here authorized the jury to find that the defendants Balark, White and Frazier were actually over the line that divided the outside waters from the inside waters and that at...
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Chester v. State
...point out particular evidence in behalf of the defendants which the jury should specially consider." Balark v. State, 81 Ga.App. 649, 654(1)(c), 59 S.E.2d 524 (1950). Chester's requests "are more adjusted to the exhortation of counsel than to the impartial clarity which should characterize ......
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Epps v. State
...embraces the same matter or as much thereof as is appropriate. Blackewood v. State, 196 Ga. 34(6), 25 S.E.2d 643; Balark v. State, 81 Ga.App. 649(1-b), 59 S.E.2d 524. The charge given by the trial judge clearly encompassed the appropriate charges requested by 8. In enumeration of error 8, a......
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Bienert v. State, 33823
...is based may be found in Lawrence v. State, 68 Ga. 289. It has been applied to statutory misdemeanors not malum in se. Balark v. State, 81 Ga.App. 649(1-a), 59 S.E.2d 524. See also Herbert v. State, 45 Ga.App. 340, 164 S.E. 452; Frazier v. State, 27 Ga.App. 261, 107 S.E. 896; Biddy v. State......
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Sumlin v. State, A92A2415
...clarity which should characterize the instructions of the court, is sufficient reason for [its] refusal." Balark v. State, 81 Ga.App. 649, 653-654(1c), 59 S.E.2d 524 (1950). It follows that there was no error in the trial court's refusal to give the requested Judgment affirmed. POPE, C.J., ......