Fitzgerald v. State

• Decision Date: 19 October 1950
• Docket Number: No. 2,33222,Nos. 33221,s. 33221,2
• Parties: FITZGERALD v. STATE (two cases)
• Court: Georgia Court of Appeals

Page 666

61 S.E.2d 666

82 Ga.App. 521

FITZGERALD v. STATE (two cases).

Nos. 33221, 33222.

Court of Appeals of Georgia, Division No. 2.

Oct. 19, 1950.

SYLLABUS BY THE COURT.

1. (a) Code §§ 81-1102, 81-1103, relating to the duty of the trial court on request to write out his charge and file the same after reading it with the clerk of court, have been liberalized by the Code of 1933 and the amendment of 1943 to Code, § 81-1102, so that where it appears that the charge so read has been duly filed in the clerk's office the fact that it was retained by the trial court for some time prior thereto is not necessarily error requiring reversal.

(b) It is not required that the trial court copy into the charge so written the Code sections read to the jury verbatim, but they should be identified therein without possibility of dispute.

2. Where illegal evidence is volunteered by a witness and promptly ruled out by the court, it is ordinarily not an abuse of discretion to refuse a mistrial.

3. A written request to charge which is not in proper form need not be given by the trial court.

4. (a) Failure to charge the jury that it is for their determination as to whether the statement of the defendant amounts to a confession and, if so, what credit and weight are to be given it do not, in the absence of request to so charge, require the grant of a new trial.

(b) Where a witness testifies that the confession was freely and voluntarily made, and no objection is made to such testimony on the ground that it is a conclusion, it is presumed that such ground of objection has been waived. See Lemon v. State, 80 Ga.App. 854, 57 S.E.2d 626.

5. Failure to charge the law relating to circumstantial evidence is not error in the absence of request where the conviction is not dependent upon circumstantial evidence alone.

6. 'One who has in his possession more than a quart of non-taxpaid whisky in a county where whisky cannot legally be sold, is not, as a matter of law, guilty of violating both sections of the act of 1938, codified as §§ 58-1056 and 58-1077 in the Annotated Code Supplement. To violate the former section, he must have in his possession whisky on which the tax has not been paid; and the latter section, by having in his possession, in a dry county, more than a quart of whisky on which the tax has been paid.' Pierce v. State, 200 Ga. 384, 387, 37 S.E.2d 201. Possessing more than one quart of non-taxpaid whisky in a dry county is not a violation of this act. The conviction of the defendant based thereon, in case No. 33222, is therefore contrary to law.

The defendant in these cases, D. D. Fitzgerald, was charged with possessing alcoholic liquor upon which the State tax had not been paid (Case No. 33221) and with possession of more than one quart of spirituous liquor in Lee County, a dry county, in violation of the Revenue Tax Act of 1938 (Case No. 33222), both on September 20, 1949. Although the defendant was tried by separate juries on these two accusations, the briefs of evidence in each case disclose that both accusations grew out of the same transaction. The cases are therefore considered together. The briefs of evidence are of sufficient similarity to warrant the findings of fact to be treated together, and the evidence as disclosed by the briefs of evidence in each case authorized each jury to find facts substantially as follows: that the defendant was driving a Ford car on the night of September 26 between Smithville and Leslie, Georgia; that one J. B. Atkins was seated in the front seat with him and another man in the rear seat; that the Patrol car endeavored to stop the Ford by means of its spotlight and siren; that the defendant speeded up and began travelling between sixty-five and seventy miles per hour; that one of the officers fired several shots at the car tires but was unable to stop the car; that the officers in the Patrol car then changed seats and, after again catching up with the Ford, the other officer fired, hitting one of the tires; that the car then stopped; that during the chase a five gallon jug and several one gallon jugs of whisky were thrown out of the car; that some of the whisky hit the windshield of the pursuing car and a quantity of it was found along the road together with the broken containers; that none of these containers had affixed thereon tax stamps; that one of the Patrolmen said to the defendant after arresting him, 'You're not supposed to be hauling whisky are you?' to which he replied that he got in a tight and needed some extra money; that this statement was voluntarily made without fear or hope of reward; that another witness for the State talked to the defendant and asked him whose whisky it was, and that the defendant said it was his. The defendant's companion, B. J. Atkins, testifying in his behalf, stated that he and the other occupant of the car owned the whisky; that they ran out of gas and called the defendant's son-in-law to bring them some gasoline; that the defendant accompanied his son-in-law to the car and stated that he would drive with the other two men back to Cordele, and that the defendant had nothing to do with the whisky and did not know of its presence in the car. The defendant in his unsworn statement corroborated this testimony, adding that he found when he got there that both men had been drinking. As the testimony in these cases is substantially the same, they are here considered together. After conviction in each case the defendant filed his motions for a new trial, which were later amended, and after hearing the trial court overruled both motions. These judgments are assigned as error.

Fort & Fort, Americus, for plaintiff in error.

Stuart Watson, Acting Sol., Albany, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1(a) Special grounds 3 and 7 of the respective amended motions complain that the court erred in failing to comply with Code, § 81-1103, which provides as follows: 'The charge so written out and read shall be filed with the clerk of the court in which it was given, and shall be accessible to all persons interested in it', referring to requests that the judge write out his charge. The complaint is that the court held the charge as written and read from April 19, the day of the trial, until May 19, when he filed it with the clerk. A duplicate copy of the charge had promptly been mailed to counsel. In this contention they rely upon Ashley-Price Lumber Co. v. Henry, 23 Ga.App. 93, 98 S.E. 185, Forrester v. Cocke, 6 Ga.App. 829, 65 S.E. 1063, and other cases holding that the charge must be filed as soon as delivered, and that the retention of it by the court, even overnight, is reversible error.

This statute was enacted by the legislature, Ga. Laws 1860, p. 42, as it appears in our Code of 1933. The act of 1877, Ga. Laws 1877, p. 13, amended the statute by adding the words 'as soon as delivered'. This provision, as stated by Justice Bleckley, in Wheatley & Co. v. West, 61 Ga. 401, 408, stood 'as a kind of constitutional law between the bench and the bar,' referring to both Code, §§ 81-1102 and 81-1103. The words 'as soon as delivered' were deleted from the 1933 Code, although they appeared in prior codes during the time the decisions cited by the defendant were written. While it is presumed that the Legislature, merely by adopting the Code of 1933, intended no change in the law, Rogers v. Carmichael, 184 Ga. 496, 192 S.E. 39, nevertheless where an intention to change appears, and the change is so conspicuous as to demand the presumption that it must have been noticed by the lawmakers, such change must be given effect. See Maddox v. First National Bank of Jefferson, 191 Ga. 106, 11 S.E.2d 662. Further, since the adoption of the Code of 1933, Ga. L. 1943, p. 262, Code, § 81-1102 has been amended as follows: 'Provided, however, the provisions of this section shall not apply when there is an official stenographer or reporter of the court in attendance thereon, and he, the official court reporter, takes down in shorthand and writes out the full charge of the trial judge in said case upon the direction of court.' As nearly every court in this State now has available to it the service of a court reporter, it becomes obvious that the purpose for which these code sections were intended--to prevent disputes between bench and bar--is deemed by the legislature to be met where the charge is not in fact written by the court at all but merely transcribed by the reporter. In view of this, the code sections no longer fulfill the purpose Judge Bleckley envisioned for them of a kind of consitutional law between bench and bar, but merely serve as a medium for making certain that the charge as spoken will, at some future time, be reduced to the printed word. In view of these legislative changes, the decision in Ashley-Price Lumber Co. v. Henry, supra, is no longer controlling, and the fact that the trial court did not file the charge with the clerk immediately after reading the same does not constitute reversible error.

1(b) Complaint is further made in special ground 6 (Case No. 33222) that the court erred in failing to identify, in his charge as written, the code section under which the accused was prosecuted. Where the code section is correctly identified in the charge it is not necessary to copy it verbatim. See Burns v. State, 89 Ga. 527, 15 S.E. 748. The written charge contains the words, 'Here the court read the code section under which the defendant was accused.' Examination of the accusation, which is a part of the record, reveals that it is drawn up under the 'Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors' approved February 3, 1938, and the provisions of which appear as Code Supp. § 58-1077. Where what the court actually read to the jury may be ascertained from the record in the case without any possibility of dispute, the error in not placing it in the charge as written is not...