Chapman v. State

• Decision Date: 18 January 1922
• Docket Number: 12888.
• Citation: 110 S.E. 332,28 Ga.App. 107
• Parties: CHAPMAN v. STATE.
• Court: Georgia Court of Appeals

110 S.E. 332

28 Ga.App. 107

CHAPMAN v. STATE.

No. 12888.

Court of Appeals of Georgia, First Division

January 18, 1922

Syllabus by the Court.

The request to charge set out in the first special ground of the motion for a new trial, as to the burden on the state to identify the defendant, beyond a reasonable doubt, as one of the persons present when the grave was destroyed, was covered by the general instructions given, and therefore the failure to charge in the language requested is not cause for a new trial. See Park's Pen. Code, § 1087, and annotations.

Though the evidence authorized a charge on the law of confessions failure to instruct the jury on that subject, in the absence of a timely written request that they be so instructed, is not, under the facts of the instant case, cause for a new trial.

Inculpatory statements, made in the presence and hearing of the defendant, and neither answered nor denied by him, are admissible in evidence. Penal Code 1910, § 1029; Moye v State, 66 Ga. 740(2); Franklin v. State, 69 Ga 36(2), 47 Am.Rep. 748; Watson v. State, 136 Ga. 236 71 S.E. 122; Gates v. State, 20 Ga.App. 171(1), 92 S.E. 974.

(a) Under the above ruling and the facts of the instant case, the evidence the admission of which is complained of in the third ground of the amendment to the motion for a new trial was admissible.

Moreover, even if it were error to admit that evidence, the error was not such as would authorize this court to grant a new trial, since evidence to the same effect had already been admitted without objection. Smith v. State, 23 Ga.App. 76, 77(3), 97 S.E. 454. The ruling in the case of Morris v. Stokes, 21 Ga. 552, relied upon by plaintiff in error, is insufficient to alter our ruling, as the facts of that case are clearly distinguishable from those of the instant case.

The evidence authorized the verdict, and the court did not, for any reason assigned, err in overruling the motion for a new trial.

Error from City Court of Hall County; W. B. Sloan, Judge.

Fred Chapman was convicted of an offense, and he brings error. Affirmed.

Wm. P. Whelchel, C. B. Barrett, and B. P. Gaillard, Jr., all of Gainesville, for plaintiff in error.

E. D. Kenyon, Sol., of Gainesville, for the State.

LUKE J.

The second headnote alone needs elaboration. It has been repeatedly ruled by the Supreme Court and this court that, although the evidence may tend to show a confession of guilt by the accused, it is not cause for a new trial for the judge to fail, in the absence of a timely and appropriate written request, to instruct the jury on the subject of confessions. Among the cases in which such a ruling is made are: Malone v. State, 77 Ga. 768 (5); Nobles v. State, 98 Ga. 73, 26 S.E. 64, 38 L.R.A. 577; Walker v. State, 118 Ga. 34, 44 S.E. 850; Patterson v. State, 124 Ga. 408, 52 S.E. 534; Nail v. State, 125 Ga. 234, 54 S.E. 145; Pierce v. State, 132 Ga. 27, 63 S.E. 792; Cantrell v. State, 141 Ga. 98, 80 S.E. 649; White v. State, 141 Ga. 526, 81 S.E. 440; Thomas v. State, 150 Ga. 269, 271, 103 S.E. 244; Baker v. State, 14 Ga.App. 578, 582, 81 S.E. 805; Cooner v. State, 16 Ga.App. 539 (5), 85 S.E. 688; McArthur v. State, 19 Ga.App. 747 (2), 92 S.E. 234; Cauthen v. State, 24 Ga.App. 140 (2), 100 S.E. 39; Scarboro v. State, 24 Ga.App. 27 (8), 30, 99 S.E. 637. However, counsel for the plaintiff in error contend that the facts of the instant case required, even in the absence of a timely written request, a charge upon the law of confessions, and in support of this contention they cite and rely mainly upon the cases of Rucker v. State, 2 Ga.App. 140 (2), 58 S.E. 295, and Lucas v. State, 110 Ga. 758, 36 S.E. 87. This contention is without substantial merit. These cases are easily distinguishable from the instant one. In the Rucker Case the confession was uncorroborated even by proof of the corpus delicti, and the defendant's conviction depended solely upon the confession, and the court held that it was therefore reversible error, even in the absence of a timely written request, for the judge to fail to charge on the subject of confessions. In the Lucas Case it was held:

"The failure in the present case * * * to instruct the jury that 'a confession alone, uncorroborated by other evidence, will not justify a conviction,' is cause for a new trial."

There the charge on the subject of confessions, the court said, was full and accurate, save only that there was an entire failure to inform the jury that an uncorroborated confession was not of itself sufficient in law to warrant a conviction. It was further said in that case, that,...