Bryant v. State

• Decision Date: 14 October 1982
• Docket Number: No. 64269,64269
• Citation: 163 Ga.App. 872,296 S.E.2d 168
• Parties: BRYANT v. The STATE.
• Court: Georgia Court of Appeals

Page 168

296 S.E.2d 168

163 Ga.App. 872

BRYANT v. The STATE.

No. 64269.

Court of Appeals of Georgia.

Oct. 14, 1982.

Leonard N. Steinbert, Forest Park, for appellant.

Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., Jonesboro, for appellee.

CARLEY, Judge.

Appellant was indicted for felony escape from lawful confinement while serving a nine year sentence for burglary and aggravated assault of a police officer. He entered a plea of not guilty and was brought to trial before a jury. The state presented evidence of the circumstances of the escape and appellant was identified as one of the escapees. Appellant was then sworn as his own sole witness and testified that, although he had been convicted and sentenced in Clayton County for the burglary and aggravated assault offenses, he had been "boarded out" in the Forest Park jail. According to appellant, conditions and food for the prisoners at the jail were so poor that, when he awoke one night and saw the bars cut and a window open, he followed three other prisoners out. Appellant went to his mother's house where he was arrested three days later.

At the close of the evidence, the trial court announced that, in view of appellant's testimony under oath admitting every element of the crime of escape, appellant was "hereby found guilty and the jury is discharged." The judge then pronounced sentence and remanded appellant to the custody of the sheriff. Defense counsel's objection that "we have not waived our right to a jury trial" was overruled, the court stating: "Your client has pled guilty under oath in this court and when he does that he has waived his right to a jury trial." On appeal, it is urged that the trial court erred in discharging the jury without allowing it to determine appellant's guilt or innocence.

1. Two fundamental doctrines of criminal jurisprudence are involved in the instant case. The first is the constitutional right to have a public and speedy trial by jury unless that right is waived. Ga. Const., Art. I, Sec. I, Para. XI (Code Ann. § 2-111); Ballew v. State, 145 Ga.App. 829, 245 S.E.2d 169 (1978). See generally, Daniel, Ga.Crim. Trial Prac., § 14-12 (1977). The second is the presumption of innocence which "remains with the defendant throughout the progress of the trial, unless and until it be overcome in the minds of the jury from what is adduced on the stand, under the rules of law as given by the court." Kelly v. State, 204 Ga. 239(1), 49 S.E.2d 489 (1948). It is clear from the trial transcript that the appellant did not knowingly waive his right to a jury trial and he did not voluntarily enter a plea of guilty. Thus, the question before us is whether, in view of these two principles of criminal jurisprudence, the trial judge exceeded his authority in discharging the jury and in rendering judgment against the appellant.

In applying these principles, we must recognize the extent of the authority and power of a jury in a criminal case. Both the Constitution and the statutory law of this state express the maxim that the jury shall be the judges of the law and the facts in the trial of all criminal cases. Ga.Const.1976, Art. I, Sec. I, Para. VIII (Code Ann. § 2-108); Code Ann. § 27-2301. Early on, our Supreme Court stated in this regard that "[t]he jury are judges of the law in criminal cases, in this: that they have the legal right to acquit the prisoner, although the Judge may charge them, that if certain facts be proven, he is guilty according to law; and although they may find those facts to be proven. But the Judge is their safe and reliable adviser as to the law." McGuffie v. State, 17 Ga. 497, 498(12) (1854). See also Holder v. State, 5 Ga. 441 (1848); McPherson v. State, 22 Ga. 478 (1857).

This concept of "jury nullification" has been moderated somewhat as to the judicially sanctioned authority of the jury to judge the law applicable to a case on trial. It is now accepted that "the province of the court [is] to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence. While the impaneled jurors are made absolutely and exclusively judges of the facts in the case, they are, in this sense only, judges of the law." Berry v. State, 105 Ga. 683(1), 31 S.E. 592 (1898); Harris v. State, 190 Ga. 258, 263, 9 S.E.2d 183 (1940). Accord, Mims v. State, 188 Ga. 702(4), 4 S.E.2d 831 (1939). Harris expressly overruled Holder, McGuffie and McPherson to the extent that those cases authorized the trial court to charge that the jury could disregard the court's instructions and, in effect, determine the law to be different from that given in charge by the judge. However, the appellate decisions disapproving jury instructions which expressly inform a jury that it can independently construe as well as apply the law has not, in fact, altered the power of the jury to do just that if, in so doing, it acquits the defendant. From a practical standpoint, there is no way to review or control the manner in which a jury applies, ignores or misconstrues the law in arriving at a verdict of not guilty. The purpose of the above analysis of the meaning of the mandate that "the jury in all criminal cases, shall be the judges of the law and the facts" (Code Ann. § 2-108) is to illustrate that it can never be said--in the instant case or in any case--that the jury could not acquit the defendant if it so desired.

"[T]he jury is entitled to believe a part of the testimony of a witness and disbelieve other parts." Williamson v....