Davis v. State
| Decision Date | 02 September 1975 |
| Docket Number | No. 1,No. 50741,50741,1 |
| Parties | C. E. DAVIS v. The STATE |
| Court | Georgia Court of Appeals |
Cathey & Strain, Edward E. Strain, III, Cornelia, Andrew J. Hill, Jr., Lavonia, for appellant.
Clete D. Johnson, Dist. Atty., Royston, for appellee.
Appellant Davis was tried and convicted upon an indictment alleging an aggravated assault in that Davis attacked one Edwards with a certain pistol, a deadly weapon, about the head causing injury. Following conviction, the trial court sentenced Davis to serve three years in the penitentiary. From the judgment and conviction, Davis appeals, enumerating some eight errors. Held:
1. The first three enumerations are on the general grounds and since appellant has not pursued these three enumerations in his brief and argument in support thereof, these first three enumerations have been waived and abandoned. Rules of the Court of Appeals of the State of Georgia, Rule 18(c) (2); Manning v. State, 123 Ga.App. 844, 182 S.E.2d 690.
2. The fourth enumeration complains that the trial court erred in allowing into evidence testimony concerning other crimes allegedly committed by appellant and comments on such other crimes. This situation arose as follows: When the trial court asked the district attorney to call the next case, the appellant's case was called. Before the jury had been selected but apparently while they were in the courtroom the trial court reminded the appellant the case had been put off before in order to enable him to obtain the services of an attorney. Though appellant apparently wished to proceed pro se, the Court arranged to have an attorney assist him strike a jury. At this point the appellant, before conferring with an attorney, stated: The district attorney added this comment for the court: 'Your honor, he has several cases but I would prefer to try this case first.' Thereafter, the court directed the case to proceed with this comment. The appellant conferred with the attorney in the courtroom and that attorney, Mr. Harper, represented appellant throughout the remainder of the trial, commencing with the striking of the jury. Subsequently, upon cross examination of the alleged victim's wife, Mrs. Edwards, counsel for appellant asked Mrs. Edwards: 'Has he (the victim, Edwards) ever gone to Federal court and pled guilty to knocking down poles on Highway 29?' The witness' answer to that question was: 'Yes, and Mr. Davis was out there being tried when he was.' No objection was entered to the unresponsive portion of the answer.
Appellant contends the evidence of other crimes brought to the jury's attention both before and during appellant's trial falls squarely within the long-standing prohibition against the introduction of such evidence. Bacon v. State, 209 Ga. 261, 71 S.E.2d 615; Hodges v. State, 85 Ga.App. 617, 623-626, 70 S.E.2d 48.
Appellant misconceives the purpose of the rule invoked. The reference to 'other cases' was first interjected into the case by appellant as an unsolicited statement. Thereafter responses to appellant's initial comment were made by the district attorney and the court. Furthermore, these comments were made prior to the selection of the jury that ultimately returned findings of guilty. The rule invoked by appellant generally states that on a prosecution for a particular crime, evidence which shows or tends to show that the accused has committed another crime wholly distinct, independent and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other. Bacon v. State, supra. The fallacy in appellant's position is that the comments by appellant, the district attorney and the court prior to trial and by Mrs. Edwards during the trial at no time mentioned another 'crime.' They mentioned other 'cases.' Whether these were offenses to be tried or in which acquittals occurred or might occur, whether these 'cases' were wholly distinct, independent or separate from the case upon trial, was never even intimated much less proven. We conceive the first comments before trial to be no more than a colloquy between appellant, counsel and the court. The court's comment was addressed to appellant and the comments of appellant and the district attorney were addressed to the court. Obviously no affirmative effort was made to influence the jurors. The comments made by the parties were all pertinent to the orderly processing of the case, and we find that no reversible error appears. Hodges v. State, supra, at page 619, 70 S.E.2d 48. Moreover, if appellant or his counsel thought such comments could prejudice the potential members of the jury, appellant had the opportunity of identifying such veniremen and removing them by challenge. Since no error is raised as to the jury selected, we can and will assume appellant was satisfied that the jury had not been prejudiced. Manning v. State supra; Cochran v. State, 113 Ga. 736, 39 S.E. 337. The unresponsive answer uttered by Mrs. Edwards, in addition to not identifying a specific crime, was not objected to; no motion to strike was made nor was any further reference made as to that answer. 'A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.' Joyner v. State, 208 Ga. 435, 438, 67 S.E.2d 221, 222; Moore v. State, 222 Ga. 748, 755, 152 S.E.2d 570; Foster v. State, 230 Ga. 186(1), 195 S.E.2d 902. Accordingly, we find the fourth enumeration of error to be without merit.
3. Appellant's fifth enumeration alleges he was never identified in open court as being the perpetrator of the alleged crime. Contrary to his assertion, all the prosecution witnesses stated the appellant was the owner of the Davis Trailer Court, lived in a house at the entry road to the area and on the evening in question was involved in an encounter with Edwards. Appellant identified himself as C. E. Davis who rented house trailers; he lived in a house on the entry road to the area wherein the rental trailers were located; and that he had an encounter with Edwards on the same evening in question. There can be no question that the totality of the evidence fully identified appellant as the alleged perpetrator of an aggravated assult upon Edwards. There is no merit in enumeration of error number 5. Moughon v. State, 57 Ga. 102, 104-105; Johnson v. State, 73 Ga. 107.
4. The sixth enumeration alleges an error in the trial court's refusal to grant a continuance to obtain a witness. Appellant, during his testimony in chief asserted that one Bowen was seated in appellant's automobile and was an eyewitness to the entire incident. On the first day of trial, appellant's counsel asked the court for a delay in order to secure the presence and testimony of this witness. The court...
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