Brown v. State
| Decision Date | 01 June 1948 |
| Docket Number | 32021. |
| Citation | 48 S.E.2d 565,77 Ga.App. 245 |
| Parties | BROWN v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where the trial judge in a criminal case fully and clearly charges the jury on reasonable doubt as to the whole case, it is unnecessary that this charge be repeated and specifically applied to particular phases of the case. See Watkins v. State, 18 Ga.App. 60(2), 88 S.E 1000; Stowe v. State, 51 Ga.App. 726(2), 181 S.E 419; Pierce v. State, 66 Ga.App. 737(4), 19 S.E.2d 192; Collins v. State, 199 Ga. 830, 834, 35 S.E.2d 452.
2. When the conviction for larceny, burglary and kindred crimes rests both upon proof of recent possession of the stolen goods and upon other circumstances tending to establish the guilt of the accused, an entire failure to charge as to the evidentiary value of the possession, and the effect of the explanation, is not cause for a new trial in the absence of a request to so charge. Toney v. State, 69 Ga.App 331, 25 S.E.2d 85; Crumady v. State, 168 Ga. 457 463, 148 S.E. 157.
3. Where counsel in the hearing of the jury makes statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objections made, he shall also rebuke the counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff's attorney or the solicitor general in a criminal case is the offender. When such argument of counsel is manifestly improper and prejudicial to the defendant, and the trial court neither grants the mistrial, nor rebukes counsel, nor by needful and proper instructions to the jury endeavors to remove the improper impressions from their minds, the verdict later reached by the jury is adverse to the defendant and is not demanded by the evidence, a new trial is required. See Code, § 81-1009; Baggett v. State, Ga.App., 47 S.E.2d 592; Fountain v. State, 23 Ga.App. 113(7), 98 S.E. 178; Bedsole v. State, 32 Ga.App. 792, 124 S.E. 812; Lober v. State, 60 Ga.App. 204, 3 S.E.2d 597.
The plaintiff in error, Emerson Brown, hereinafter referred to as the defendant, was tried in the Superior Court of Fulton County, for the offense of burglary. Construing the evidence in its most favorable light to support the verdict the jury trying the case was authorized to find that on the night of August 20th or the early morning of August 21, 1947, the place of business of the Smith Paint & Lacquer Co., located at 487 Peachtree St. N.E., Atlanta, was broken into and burglarized and approximately $150, most of which was in change rolled in money wrappers, was taken; that about 2 o'clock A.M. on August 21st, the night watchman at the Medical Arts Bldg., which is located across the street from the Smith Paint & Lacquer Co., heard a window break and saw two people run across the street from that building, one of whom resembled the defendant; that about 3:30 P.M. on August 22nd, the defendant was interviewed by police officers at his room in the Imperial Hotel in Atlanta; that the defendant voluntarily took everything out of his pockets when asked what he had on his person except some automobile keys; that one of the officers searched the defendant and found a set of automobile keys; when the defendant was asked if he had an automobile, he denied having one and said the keys fit a lock in Carrollton, Georgia, that a car registered in the name of the defendant's wife was parked in the lot in the rear of the hotel; that the keys taken from the defendant fit the car; it was unlocked and searched; that some rolls of change and a money bag were found in it; that on August 20th, Mrs. Irene A. Smith, the President and Treasurer of the Smith Paint & Lacquer Co., had gone to the bank and gotten the change or wrapped coins; that on this occasion she used a money bag belonging to the company; that she identified part of the rolls of change by certain marks she observed thereon that were taken from this car as the rolls of change she had procured from the bank on that day and left in the safe which was broken open in the course of the burglary; that she identified the money bag taken from the car as the one belonging to the company which she had used in procuring the money from the bank; that this money bag had a spot of blood on it; that the defendant had a fresh wound on one of his hands at the time of his arrest.
The defendant offered evidence in explanation of his possession of the change which was to the effect that while he was in a wrecker shop along about the middle of August, 1947, consulting with the witness about an automobile trade, a third party came in with $40 or $50 in change rolled in money wrappers seeking to exchange it for bills; that the witness did not have a sufficient quantity og greenbacks to make the exchange, but that the defendant, standing by and overhearing the proposal, voluntarily made the exchange and accepted the money rolled in the coin wrappers. The defendant also introduced a number of witnesses tending to establish an alibi and explained his possession of the money in accordance with the testimony of his witnesses.
The jury returned a verdict of guilty and fixed his punishment at 20 years in the penitentiary.
The defendant filed a motion for a new trial on the general grounds which was later amended by adding 5 special grounds. The trial court overruled the motion for a new trial as amended and this judgment is assigned as error.
James R. Venable, of Atlanta, and Willis Smith, of Carrollton, for plaintiff in error.
Paul Webb, Sol. Gen., William Hall, and William T. Boyd, all of Atlanta, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts).
1. Special ground 1 of the amended motion for a new trial has been abandoned.
Special ground 2 contends that the court erred in failing to charge the jury 'that the burden was upon the State to prove to the jury beyond a reasonable doubt that the articles of money and money bag alleged to have been found in the automobile of the defendant or the automobile in which he had the keys too [to], were the same articles which is alleged and claimed to have been stolen from the place alleged to have been burglarized.' This charge was not requested and it is contended that the failure of the court to give it was error although in the absence of request. The authorities cited herein indicate that failure to so charge is not error even when requested because the court elsewhere in his charge instructed the jury fully and clearly on this subject. However, it is not necessary for us to here determine whether or not this failure to charge constitutes error when requested, there being no such request in the instant case. We hold merely that where the trial judge in a criminal case fully and clearly charges the jury on reasonable doubt as to the whole case, as in the instant case, it is unnecessary that this charge be repeated and specifically applied to particular phases of the case. See Watkins v. State, 18 Ga.App. 60(2), 88 S.E. 1000; Stowe v. State, 51 Ga.App. 726(2), 181 S.E. 419; Pierce v. State, 66 Ga.App. 737(4), 19 S.E.2d 192; Collins v. State, 199 Ga. 830, 834, 35 S.E.2d 452. The cases cited in brief of counsel for defendant in support of this ground of the amended motion for a new trial deal with the principle of law relating to reasonable doubt and without reference to whether the court properly charged it.
This ground of the amended motion for a new...
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