Campbell v. State

• Decision Date: 09 June 1976
• Docket Number: No. 31040,31040
• Parties: Phillip Eugene CAMPBELL v. The STATE.
• Court: Georgia Supreme Court

Page 601

226 S.E.2d 601

237 Ga. 76

Phillip Eugene CAMPBELL v. The STATE.

No. 31040.

Supreme Court of Georgia.

June 9, 1976.

Grogan, Jones, Layfield & Swearingen, John C. Swearingen, Jr., Columbus, for appellant.

E. Mullins Whisnant, Dist. Atty., William J. Smith, Asst. Dist. Atty., Columbus, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., Atlanta, for appellee.

PER CURIAM.

Phillip Eugene Campbell appeals his conviction for armed robbery. For the appeal of his co-defendant James Valenzule, alias Richard George Jung, see Jung v. State, 237 Ga. 73, 226 S.E.2d 599 (1976).

1. Considering the totality of the circumstances, the in-court identification of this defendant by the victim was not rendered inadmissible by the pre-trial identification procedure. Heyward v. State, 236 Ga. 526, 224 S.E.2d 383 (1976). It follows that the evidence supports the verdict.

2. Where a robbery victim testifies at one point that the robbery occurred at her home and testifies at another point that her home is in a certain county, venue is shown. It is not necessary for the State to prove that the victim did not have more than one home. If venue is an issue in the case, the victim may be cross examined upon this subject.

3. The transcript shows that during the course of the trial the trial judge made certain remarks and inquiries in ruling on objections to evidence, in questioning counsel as to the purpose of questions and as to whether they had objections to the admission of physical evidence, and in announcing that certain objections would be deemed to be continuing objections. We have examined the transcript and find no violation of Code Ann. § 81-1104.

4. The charge of the court as to reconciling conflicts in the evidence was not error. Gordy v. State, 236 Ga. 723, 225 S.E.2d 287 (1976).

Judgment affirmed.

All the Justices concur.

HILL, Justice (concurring).

I concur in the judgment of the court but wish to add my views on the subject of Division 4 of the opinion.

The trial court charged the jury upon credibility of witnesses as follows: 'Now, ladies and gentlemen, the credibility of the witnesses is a matter to be determined by you under the instructions of the Court. You are the sole and the exclusive judges of the credibility of the witnesses and the weight that should be given to the witnesses' testimony. And in determining the credibility of the witnesses, you may consider all the facts and circumstances of this case, the witnesses' manner of testifying, their intelligence, ¹ their means and opportunity of knowing the facts to which they have testified, the nature of the facts to which they have testified, the probability or improbability of their testimony, their interest or want of interest and also their personal credibility insofar as the same may legitimately appear to you upon the trial of this case. Now, if upon consideration of the evidence, ladies and gentlemen, there should appear to you to be a conflict between the testimony of the witnesses, then it would become your duty if you can to reconcile that conflict so as to make every witness speak the truth and without imputing perjury to any witness. If, however, ladies and gentlemen, you find any of the evidence in such irreconcilable conflict that you cannot thus resolve it, then it would become your duty to believe that evidence and those witnesses whose testimony seems most reasonable and most credible to you.'

The charge given by the trial court is similar to the one prepared by the Council of Superior Court Judges (criminal charges, form 50). The defendant contends that the last sentence quoted above constitutes reversible error. Because one of the standard criminal charges in use throughout the state is under attack, this matter becomes one of some concern.

The defendant relies upon three cases, Knapp v. United States, 316 F.2d 794 (5th Cir. 1963); Farmer v. Caldwell, 476 F.2d 22 (5th Cir. 1973); and United States v. Holland, 526 F.2d 284 (5th Cir. 1976). Knapp and Holland, supra, appear to be based upon the circuit court's supervisory power and not upon constitutional grounds.

Knapp v. United States, supra, involved the district court's jury instructions. There the defense put up no evidence. The court charged the jury that witnesses are presumed to tell the truth. The defendant urged that because he had offered no evidence the effect of this charge was to direct a verdict of guilty; i.e., to instruct the jury that the government's witnesses are presumed to tell the truth. The circuit court agreed with the defendant's argument but declined to reverse his conviction because the defendant had not objected to the charge before the jury commenced its deliberations as required by Rule 30, F.R.Crim.P.

Unlike the federal rule, Georgia law unfortunately allows the defendant to listen to the court's charge, make no objection, hope for acquittal, then complain of the charge on appeal, and if successful get a second trial at public expense. Code Ann. § 70-207(a). In my view the exclusion of criminal cases from Code Ann. § 70-207 has the effect of depriving trial judges of the adversarial presentation of questions concerning jury instructions and impedes improvement of the charge of the court in criminal cases...