Dozier v. State
Decision Date | 07 April 1969 |
Docket Number | No. 1,No. 44293,44293,1 |
Citation | 119 Ga.App. 531,167 S.E.2d 670 |
Parties | Emma DOZIER v. The STATE |
Court | Georgia Court of Appeals |
Harl C. Duffey, Jr., James A. Robbins, Jr., Rome, for appellant.
No appearance for appellee.
Syllabus Opinion by the Court
The defendant, in a two-count accusation, was charged with, and convicted of, the offenses of selling whiskey contrary to the law of this State and of the offense of selling beer on Sunday. Her motion for new trial was overruled and she appealed to this court enumerating as error, among other rulings, the order overruling her motion for new trial 'upon the general and special grounds.' Held:
1. The evidence was amply sufficient to authorize the verdict of guilty on both counts. There was no failure to prove the charge of selling beer on Sunday merely because the sale occurred prior to dawn on Sunday morning. Appellant relies upon Dinkler v. Jenkins, 118 Ga.App. 239, 163 S.E.2d 443. That case was reversed in Hawes v. Dinkler, 224 Ga. 785, 164 S.E.2d 799.
2. One of the State's witnesses testified that on the two occasions in question, a Negro county police officer was present taking up dance tickets and that this officer was a part-time police officer of the county. The State offered testimony of a witness, after the defendant's statement, to the affect that the county only had two full-time Negro police officers, neither of whom was the alleged police officer present at the scene. After the prosecuting attorney had finished examining this witness, the defendant objected to the testimony on the grounds (1) that it was not offered in rebuttal, and (2) that the State could not impeach its own witness. The prosecuting attorney then stated to the court in the presence of the jury that he was offering this testimony to show that neither of the full-time county police officers was present at the scene of the offense. The trial judge sustained the objection and instructed the jury to disregard the evidence, after which the defendant's attorney moved for a mistrial contending that this evidence, although ruled out, was prejudicial. The trial court overruled the motion. We see nothing so prejudicial as to require a retrial of the case on these grounds. While the evidence may not have tended to corroborate the testimony of the prior State's witnesses that a part-time Negro police officer was at the scene of the crime, neither did it conflict with such prior testimony, as contended by the defendant. It accordingly could not prejudice the jury by misleading them into believing that because no full-time Negro police officer was present, it necessarily followed that no part-time Negro police officer was present.
3. During the opening arguments, the prosecuting attorney made the following remarks: At this point, counsel for the defendant moved for a mistrial on the grounds that the prosecuting attorney had stated his opinion to the jury as to the defendant's guilt. The court overruled the motion for mistrial and instructed the jury 'that the opinion of the solicitor should not be considered by the jury was evidence in the case, as stated in the argument of counsel in this case; you are to take the evidence from the testimony of witness who testify in the case that is admitted in evidence, from which you are to arrive at a verdict after the trial of the case in your jury room.' No specific rebuke was given the prosecuting attorney.
Floyd v. State, 143 Ga. 286, 289, 84 S.E. 971, 972. 'Under this rule as applied to the facts, the court did not err in refusing to declare a mistrial * * *.' Gossett v. State, 203 Ga. 692(8), 48 S.E.2d 71, 85. The statement made by the prosecuting attorney in the present case 'was materially different from the statements considered and dealt with in the following decisions cited for (the appellant): Broznack v. State, 109 Ga. 514(3), 35 S.E. 123; * * * Johnson v. State, 150 Ga. 67(1), 102 S.E. 439; Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384.' Gossett v. State, 203 Ga. 692, 48 S.E.2d 71, 85, supra, hn. 8(a). Moore v. State, 10 Ga.App. 805, 74 S.E. 315; Jones v. State, 123 Ga. 129, 51 S.E. 312. Particularly is this true where the trial judge instructs the jury to disregard the remarks of the prosecuting attorney and to make their verdicts according to the evidence in the case. See Johnson v. State, 150 Ga. 67(1), 102 S.E. 439, supra; Boyers v. State, 198 Ga. 838(4), 33 S.E.2d 251.
If Sparks v. State, 59 Ga.App. 883, 2 S.E.2d 506, quoting from Bishop's Criminal Procedure contains anything contrary to the decision of the Supreme Court in Floyd v. State, 143 Ga. 286, 289(5), 84 S.E. 971, it must give way to the authority of the Supreme Court of this State. The decision by this court in American Oil Co. v. McCluskey, 118 Ga.App. 123, 162 S.E.2d 853, relied upon by counsel for appellant, was reversed by the Supreme Court in McCluskey v. American Oil Co., 225 Ga. 63, 165 S.E.2d 830, but not published in the reports until about the time the present case was argued.
4. The following request to charge was refused by the trial judge: ...
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...in the case. Sikes v. Seckinger, 173 Ga. 673, 160 S.E. 911; Barrett v. Barrett, 177 Ga. 190, 196, 170 S.E. 70.' Dozier v. State, 119 Ga.App. 531(5), 167 S.E.2d 670, 673. The request was directed to the whole of Code Ann. § 68-1625, which contains detailed provisions relative to the obtainin......
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