Estep v. State

• Decision Date: 21 September 1973
• Docket Number: No. 48008,No. 2,48008,2
• Citation: 129 Ga.App. 909,201 S.E.2d 809
• Parties: James T. ESTEP v. The STATE
• Court: Georgia Court of Appeals

Page 809

201 S.E.2d 809

129 Ga.App. 909

James T. ESTEP v. The STATE.

No. 48008.

Court of Appeals of Georgia, Division No. 2.

Sept. 21, 1973.

Rehearing Denied Oct. 15, 1973.

Millard C. Farmer, Jr., Newnan, for appellant.

Eldridge W. Fleming, Dist. Atty., Hogansville, William F. Lee, Jr., Newnan, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal from a burglary conviction contains twenty specifications of error. In dealing seriatim with them we will discuss the specific subject involved by prefacing each with the question presented for decision.

1. Were the grand and traverse juries of Coweta County constitutionally composed and were they in accordance with the laws of Georgia? (Enumerations of error 1 through 11). Accused challenged the local list of the grand jury and petiti jury contending there was an unconstitutional systematic exclusion of blacks, women, and young adults between the ages of 18 and 30. A considerable portion of appellant's briefs dealt with these eleven enumerations. Included are impressive detailed charts and graphs showing percentages of alleged under-representation of these three groups. The brief also includes a scholarly study showing how our American courts have handled compliance with the Magna Carta concept that each individual is entitled to a jury of his peers with particular emphasis on those U.S. Supreme Court decisions of recent vintage that have wrought substantial changes in the composition of our juries.

These identical enumerations of error were presented by appellant's counsel in the Supreme Court of Georgia in a case pending there at the time the instant appeal was docketed. Appellant's brief in this court noted that fact with a recognition that a decision in the pending Supreme Court case adverse to his contentions would preclude our ruling in his favor on the identical questions. This is in conformity with the State Constitutional Amendment ratified in 1906 creating the Court of Appeals of Georgia which expressly required this court to recognize the decisions of the Supreme Court as binding precedents. Const. Art. VI, Sec. II, Para. VIII (Code Ann. § 2-3708). That prior case was decided March 15, 1973, the opinion being White v. State, 230 Ga. 327, 196 S.E.2d 849. All of appellant's challenges to the jury system wer there overruled.

Thereupon appellant's counsel filed a supplemental brief with us seeking to distinguish the instant case from the Georgia Supreme Court ruling. In this supplemental brief it was argued our court should independently follow the decisions of the U.S. Supreme Court despite the Georgia Supreme Court's rendition of a subsequent contrary decision citing Thornton v. Lane, 11 Ga. 459, 500; Aycock v. Martin, 37 Ga. 124, 135; Wrought Iron Co. v. Johnson, 84 Ga. 754, 759, 11 S.E. 233; and R. M. Rose Co. v. State, 133 Ga. 353, 357, 65 S.E. 770. When we compared the briefs filed by appellant's counsel in our two appellate courts we found them to be identical in the manner in which these jury challenges were argued. Under these circumstances we consider it our obligation to recognize the necessity of conforming to the decisions made by our State Supreme Court.

Additionally, appellant's counsel's supplemental brief contends that the decision of the U.S. Supreme Court in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536, is controlling in our case. Although this citation is not contained in the Georgia Supreme Court opinion our review of appellant's brief in the White case on file with the clerk of the Supreme Court shows that Alexander v. Louisiana was there cited at pages 19, 26 and 33. Moreover, the White rehearing motion urged upon our Georgia Supreme Court Justices that their opinion had overlooked 'the controlling decision' of Alexander v. Louisiana. Under these circumstances we cannot accept Alexander v. Louisiana as binding us to rule contrary to the decision rendered in White v. State, 230 Ga. 327, 196 S.E.2d 849, supra. (The record there indicates also that White has now sought to have his Georgia Supreme Court case reviewed by the Supreme Court of the United States). ¹

Finally, the supplemental brief argues a factual difference to exist in that the White case was first tried in March 1972 with a mistrial and retried last in September of that year whereas appellant Estep was not tried until December 1972. We cannot accept the contention that this difference in time put the jury commission of Coweta County on notice for a sufficient length of time to know that the grand and traverse juries were unconstitutionally composed and did not fairly reflect a representative cross section of the community eligible for service upon the grand and traverse juries because in December 1972 there had not yet been a Supreme Court decision on the appellant's contention in the White case.

We hold the binding precedent of White v. State, supra, to be a determination adverse to appellant of his first eleven assignments of error.

2. Was there a fatal error in that the probata did not follow the allegata because the indictment charged accused with burglarizing a 'store house' when the evidence showed the building was not a shop or store but a 'storage house'? (Enumerations of error 12 and 18). Appellant's contention is that the decisions of Coleman v. State, 61 Ga.App. 658, 7 S.E.2d 212 and Mash v. State, 90 Ga.App. 322, 82 S.E.2d 881 define a storehouse as meaning a place where goods are stored or kept for sale at retail or wholesale such as a shop or store. Those cases construed that word because it was used in our former statute stating the elements then constituting the crime of burglary. This was formerly Code § 26-2401 and in part reads: 'Burglary is the breaking and entering into the dwelling, mansion, or storehouse, or other place of business of another where valuable goods, wares, products, or any other article of value are contained or stored, with intent to commit a felony or larceny.' When our new Criminal Code was adopted in 1968 the definition of burglary was changed and the words 'dwelling, mansion, or storehouse' not used. Instead the new statutory definition of burglary (Code Ann. § 26-1601) uses the all-inclusive word of 'building.' This includes a 'store house' as well as a 'storehouse'.

It should be noted that the indictment did not use the single word 'storehouse' as was in the former statute but used two words, viz. 'store house.' The use of these two words indicated the building to have been used for storage purposes and thus gave sufficient notice to defendant as to the nature of the accusation. Accordingly, the trial judge was correct in refusing to charge the requests bases upon the single word 'storehouse' as used in the former statute. The evidence did follow the indictment. There is no error here.

3. Did the court's refusal to allow appellant to use an unofficial professional court reporter at his expense to transcribe the hearings and trial for appellant's personal use amount to a denial of due process and right to counsel as guaranteed by the fourteenth and sixth amendments of the U.S. Constitution? (Enumeration of error 13). In undertaking to answer this question we are reminded of the views expressed by the legendary Logan Bleckley in Colbert v. State, 91 Ga. 705, 711, 17 S.E. 840: 'We trust our upright and able brother of the circuit bench will believe that we, like himself, act from conscientious views of duty, and in no spirit of censure or criticism, official or personal. We should deem ourselves unworthy to preside in this high tribunal if either the wish to offend, or the fear of offending, could mix with the motives of our judicial conduct.' The members of this division regard it as incumbent upon us to suggest to the trial bench that a request by an attorney for personal use of a professional court reporter in addition to the official court reporter should generally be granted. We recognize that 'the trial court has a broad discretion in regulating and controlling the business of the court, and the appellate court should never interfere with its exercise unless it is made to appear that wrong or oppression results from its abuse, or the court in some manner takes away rights the parties have under the law.' Hopkins v. Allen,123 Ga.App. 330, 180 S.E.2d 919. We also know the trial judge has the final say-so as to the correctness of a transcript of evidence. Code Ann. § 24-3105. (In this connection see Camp v. Curry-Arrington Co., 46 Ga.App. 17, 166 S.E. 428 as to the procedure where there is a disagreement between counsel and court as to the correctness of a transcript.)

Nevertheless, request by an attorney for permission to have the proceedings transcribed by an unofficial professional court reporter in addition to the official court reporter should normally be granted. In many trials it is necessary for the advocate in fulfilling his obligation to his client to obtain daily transcripts. Appellant's attorney here did not question the right of the circuit court judge to appoint a court reporter. Code § 24-3101. Nor did he question the accuracy of the official court reporter. His reasons were based upon his expressed belief that representation of the client necessitated his use of an additional personal court reporter.

In the present instance, however, we find that the appellant was not deprived of his constitutional rights to a fair trial through denial of the request. The case was not so complicated that the advocate would have need of an immediate transcript. The official court reporter filed both the transcript of the hearing held on December 7, 1972, and the transcript of the trial held December 12, 1972, on January 9, 1973. Furthermore, appellant's counsel has not pointed to any factor that would indicate his client sustained any harm by the court's denial of his request. 'Injury as well as error must be shown before a new trial will be granted.' Christian v....