Gravitt v. State
| Decision Date | 08 April 1965 |
| Citation | 220 Ga. 781,141 S.E.2d 893 |
| Parties | Jerry Eugene GRAVITT v. The STATE No 22878. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The jury was authorized to find that the defendant was guilty of the offense charged.
2. It was not error to charge the jury that they could find the defendant guilty if they believed beyond a reasonable doubt that he committed the offense charged at any time within seven years preceding the date the bill of indictment was returned.
3. It was error to instruct the jury that if under the evidence and the defendant's statement the theory of innocence was not equally consistent and reasonable with the theory of guilt, they would be authorized to convict the defendant.
4. In charging that in a felony case the testimony of an accomplice must be corroborated by other testimony, the statement that 'the case now on trial is a felony,' did not amount to an expression of opinion by the trial judge that the case 'was proved as a felony.'
5. The statement by the trial judge to the defendant's counsel, in regard to counsel's cross examination of an alleged accomplice of the defendant, that 'you put him under a severe cross examination,' was not an expression or intimation of opinion by him as to what had or had not been proved on the trial. If counsel felt that the remark was prejudicial to the defendant, he should have objected to it at the time.
6. Ground 10 does not show an abuse of the discretion of the trial judge in limiting the scope of the cross examination of a witness.
7. The trial judge fully charged on the law of reasonable doubt, and it was not necessary to charge on reasonable doubt in immediate connection with the charge on conspiracy.
8. It was improper to exclude the testimony of two character witnesses who had testified on direct examination that they were acquainted with the character and reputation of the defendant and that it was good, even though they made contradictory statements on cross examination as to the basis of their testimony.
James R. Venable, Atlanta, for plaintiff in error.
William T. Boyd, Sol. Gen., J. Walter LeCraw, William E. Spence, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.
Charles William Orr, Bige Edwin Hamby, and Jerry Eugene Gravitt were charged with robbery by the use of an offensive weapon. It was charged that the date of the robbery was April 24, 1964, and that the money taken was the property of Colonial Stores, Inc. On the separate trial of Jerry Eugene Gravitt the jury found him guilty and sentenced him to a term of imprisonment of not less than ten years and not more than fifteen years. His motion for new trial, as amended, was denied, and the exception is to this judgment.
1. The defendant contended in his statement that he did not participate in the robbery described by employees of Colonial Stores, Inc., and he introduced witnesses who testified that he was at another place at the time of the robbery. Charles William Orr, who had pleaded guilty to the indictment, testified on the trial that Jerry Eugene Gravitt participated in the robbery. This testimony was corroborated by employees of Colonial Stores, Inc., who identified the defendant on trial as one of the three men who participated in the robbery, and by other evidence connecting him with the offense. The jury was authorized to find that the defendant was guilty of the offense charged, and it was not error to overrule the general grounds of the motion for new trial.
2. Ground 4 of the amended motion for new trial asserts that the trial judge erred in charging the jury that they would be authorized to find the defendant guilty of robbery as charged in the bill of indictment if they believed beyond a reasonable doubt that he committed the offense 'at any time within seven years next preceding the date' that the bill of indictment was returned. It is asserted that the State had charged in the indictment that the crime was committed on April 24, 1964, and the defendant in his statement explained where he was on this date. It is contended that the charge complained of was misleading to the jury in that they could understand from it that the defendant would be required to show the impossibility of his presence at the place of the commission of the robbery during the entire period of the statute of limitation of seven years, instead of only at the time and place of the commission of the crime as shown by the evidence of the State.
It is the general rule that evidence of guilt is not restricted to the day mentioned in the indictment, but may extend to any day previous to the finding of the bill and within the statute of limitation for the prosecution of the offense. Robinson v. State, 209 Ga. 650(7), 75 S.E.2d 9; McGruder v. State, 213 Ga. 259(1), 98 S.E.2d 564.
In Fortson v. State, 125 Ga. 16, 53 S.E. 767, this court held that it was erroneous to charge: 'An alibi, to be established in this case, the defendant would have to show that he was not at the place on the day as alleged in the indictment, and at all times within the statute of limitations, at any date on which the State relied for conviction.' It was held that this charge erroneously imposed upon the accused the burden of accounting for his presence during every day for two years next preceding the date of the accusation.
In the present case the judge correctly and fully charged the jury on the defense of alibi. There is nothing in the part of the charge claimed to be erroneous which indicates that the defendant would be required to account for his presence during the period of the statute of limitation. All of the State's evidence showed that the robbery occurred on the date charged in the indictment, at the time the store was closing. The evidence for the defendant supporting his contention that he was not at the scene of the crime at the time of its commission related to this same date and time. In order to convict the defendant the jury must have believed that he committed the crime on the date charged in the indictment. The charge complained of was not erroneous. Carr v. State, 95 Ga.App. 513, 517(5), 98 S.E.2d 231.
3. Ground 5 contends that the following charge was erroneous: 'If from the evidence and the defendant's statement and all the reasonable deductions therefrom, the theory of innocence is not equally consistent and reasonable with the theory of guilt based on proved facts, the jury would be authorized to convict a defendant and the jury would not be compelled to acquit such defendant provided the jury believed beyond a reasonable doubt that the defendant is guilty as charged in the indictment upon which he is being tried.'
While the latter part of this sentence refers to the burden of the State to prove the guilt of the defendant beyond a reasonable doubt, the first part of the sentence is not a correct statement of the rule in criminal cases as to the burden of proof of the State. The judge instructed the jury that if under the evidence and the defendant's statement the theory of innocence was not equally consistent and reasonable with the theory of guilt, they would be authorized to convict the defendant. This portion of the charge was misleading and confusing to the jury, and would require the grant of a new trial. Compare Patterson v. State, 181 Ga. 698, 702, 184 S.E. 309.
4. In ground 6 an excerpt from the charge is quoted in which the judge was charging on the rule that in a felony case the testimony of an accomplice is not sufficient to establish a fact, but must be corroborated by other testimony. The defendant assigns as erroneous the statement of the judge that 'the case now on trial is a felony.' It is contended that this was 'an expression of opinion by the trial judge that the case was proved as a felony and should be so treated by the jury.' There is no merit in this contention.
5. Ground 7 quotes a colloquy between the trial judge and counsel for the defendant. It is asserted that the judge's remark in regard to the cross examination of counsel for the defendant of an alleged accomplice of the defendant that, 'you put him under a severe cross examination,' was an expression of opinion by the trial judge as to the severity of the cross examination of this witness for the State, and was prejudicial to the defendant; and that it contravened Code § 81-1104, providing that it is error for the judge during the progress of a case to express or intimate his opinion as to what has or has not been proved. The statement of the judge did not amount to an expression or intimation of opinion as to what had or had not been proved on the trial. If counsel felt that the remark was prejudicial to the defendant, he should have objected to it at the time. Since no objection or motion to declare a mistrial was made at the time, an assignment of error in a motion for new trial can not be considered by this court....
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