Daniels v. State, 51655

• Decision Date: 26 January 1976
• Docket Number: No. 51655,No. 1,51655,1
• Citation: 137 Ga.App. 371,224 S.E.2d 60
• Court: Georgia Court of Appeals
• Parties: D. E. DANIELS v. The STATE

Page 60

224 S.E.2d 60

137 Ga.App. 371

D. E. DANIELS v. The STATE.

No. 51655.

Court of Appeals of Georgia, Division No. 1.

Jan. 26, 1976.

Wilkinson & Wallace, Charles L. Wilkinson, III, Augusta, for appellant.

Richard E. Allen, Dist. Atty., Stephen E. Curry, Asst. Dist. Atty., Augusta, for appellee.

CLARK, Judge.

Defendant was indicted for credit card theft in that he 'did withhold a credit card, to wit: Sears Credit Card . . . from the custody of Kenneth A. Wright without the cardholder's consent, with intent to use it.' Defendant was tried before a jury and convicted. He brings this appeal from the denial of his amended motion for a new trial and from the judgment. Held:

1. The state has presented a motion to dismiss this appeal, alleging that defendant is unlawfully outside the jurisdiction of the court. The record reveals, however, that defendant did not escape from confinement, but rather was lawfully and unconditionally released from prison. As the state has not presented any cogent reason for the denial of defendant's right to appeal, the motion to dismiss is hereby overruled. See generally, Yates v. Brown, 235 Ga. 391, 219 S.E.2d 729.

2. In passing upon the general grounds, we summarize the facts of the case as follows: Kenneth Wright's car was broken into and a folder containing several of his credit cards was stolen. Kay Hewell, a credit interviewer for Sears Roebuck Co., testified that a young black male possessing a folder of credit cards presented Wright's Sears card and attempted to purchase a stereo system. Although she was unable to identify defendant at trial, she had, at the time of the attempted transaction, pointed out the perpetrator to the customer service manager, Jerry Council. Council testified at trial and identified defendant as the person who was pointed out to him by Kay Hewell. Council chased defendant, who had run from the store, and apprehended him with the aid of the police. Defendant then told the police where he had thrown the folder containing the other stolen credit cards. At trial, defendant denied that he was the person attempting to use the Sears card. He contended that he had gone to Sears with Robert Lee Holmes, a schoolmate and that it was Holmes who had tried to use the credit card. Defendant asserted that Holmes had handed him the folder of credit cards after the Sears card had been removed and that he ran from the store out of fear when he realized that his cohort was engaging in illegal conduct.

We agree with defendant's contention that the state's evidence was wholly circumstantial. The sole witness to the possession and attempted use of the Sears credit card was Kay Hewell, who could not identify defendant at trial. And while Council did identify defendant at trial as the person pointed out to him by Kay Hewell, he never saw defendant in possession of the credit card. Thus, the crucial link between defendant and the possession of the credit card was established indirectly and by circumstantial evidence. See Code Ann. § 38-102.

Having carefully reviewed the record of this case, we nevertheless conclude that a reversal on the general grounds is not warranted under the facts presented here. 'The rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence excludes every reasonable hypothesis except the guilt of the accused, not that it removes every possibility of his innocence.' Eason v. State, 217 Ga. 831, 840, 125 S.E.2d 488, 493. We cannot say, as a matter of law, that the state's evidence did not exclude every other reasonable hypothesis save that of the guilt of the accused. The issue of guilt or innocence was for the jury to determine. See McConnell v. State, 235 Ga. 366, 220 S.E.2d 5. Accordingly, this enumeration is without merit.

3. At the conclusion of the district attorney's closing argument to the jury, defense counsel objected to a portion of the argument as improper and requested an opportunity to 'correct it' by rearguing to the jury. In denying this request, the trial judge indicated that it would be overly time-consuming and stated, additionally, that 'it's not in the rules to permit that'. Defendant asserts error upon this ruling, contending that the judge failed to exercise his discretion.

"This court has held repeatedly that the failure to exercise discretion when the law vests discretion in a judge, is reversible error. This is made very clear in those cases where the judge lets it be known that he does not think he has any discretion . . .' Brown v. State, 133 Ga.App. 56, 60, 209 S.E.2d 721, 725. Here, however, the record indicates that the judge did exercise discretion and that he based his ruling on the belief that reargument would be unnecessary and overly time-consuming. In addition, the transcript does not contain the argument objected to and we have no way of determining whether it was in fact improper. Thus, we are unable to discern whether a judicial exercise of discretion was in fact necessary under the circumstances. We therefore find no basis for the grant of a new trial on this ground.

4. Defendant's remaining enumeration presents an issue of first impression for this court. In compliance with the provisions of Code Ann. § 70-207(b), the trial judge informed counsel, prior to closing arguments, of his proposed action upon the requested jury instructions. Defense counsel had previously requested a charge on circumstantial evidence which the district attorney opposed on the ground that the evidence was direct rather than circumstantial. After a discussion as to the type of evidence presented by the state, the judge stated that he would not give the circumstantial evidence instruction. Closing arguments were presented and the court then gave its jury charge, which included the previously rejected instruction. Defendant's counsel now argues that the judge's prior refusal of the charge restricted his closing argument and denied him the benefit of arguing the circumstantial evidence rule to the jury.

The court has previously considered instances in which the trial judge has failed to inform counsel of the charges he intended to give. See, e.g., Smith v. Poteet, 127 Ga.App. 735, 742(8), 195 S.E.2d 213; Braswell v. Owen of Georgia, Inc., 128 Ga.App. 528, 530(3), 197 S.E.2d 463; Seaney & Company Inc. v. Katz, 132 Ga.App. 456, 208 S.E.2d 333. In deciding the questions presented in those cases, this court has in each instance sought guidance from the federal decisions. This is because Code §...