Hamilton v. State, 48813

• Decision Date: 26 February 1974
• Docket Number: No. 1,No. 48813,48813,1
• Citation: 205 S.E.2d 24,131 Ga.App. 69
• Parties: James HAMILTON v. The STATE
• Court: Georgia Court of Appeals

Page 24

205 S.E.2d 24

131 Ga.App. 69

James HAMILTON v. The STATE.

No. 48813.

Court of Appeals of Georgia, Division No. 1.

Feb. 26, 1974.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Raoul Lerow, Morris H. Rosenberg, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

Appellant was indicted in two counts for offenses occurring on the same date. Count 1 charged aggravated assault with intent to rape upon one female and Count 2 charged that offense of rape upon another female. The jury returned a verdict of guilty on the first count and returned a verdict of guilty of misdemeanor, that being simple battery, on the second charge. After the overruling of a motion for new trial as amended this appeal has been taken with three enumerations of error.

1. The first assignment of error reads: 'The court erred in charging the jury twice that the jury should bring in a verdict that will speak the truth' as this may be in conflict with the constitutional rule that the State must prove the defendant's guilt beyond a reasonable doubt and therefore said instruction relieves the State of this burden, and is highly prejudicial, and is erroneous and not the law.'

In considering averments of error dealing with jury instructions our appellate courts follow the wisdom of that rule stated by the legendary Logan Bleckley in Brown v. Matthews, 79 Ga. 1(1), 4 S.E. 13; 'A charge, torn to pieces and scattered in disjointed framents, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall.' Applying this mandate to the charge in the instant case we find the trial court covered completely and correctly all necessary points of law. This included the principles of presumption of innocence, burden of proof upon the prosecution, and necessity for 'the State to prove every material allegation of the bill of indictment to your satisfaction and beyond a reasonable doubt by the production of evidence before you would be authorized to convict the defendant.' (T. 237). Having done so in an all-inclusive charge of twenty-three pages, there is no error in stating on two occasions that the object of all legal investigations, is the discovery of the truth, and that the jury was to return a verdict that will do justice and one that will speak the truth.' (T. 256). See McFall v. State, 101 Ga.App. 44, 45, 112 S.E.2d 691 and Bryant v. State, 101 Ga.App. 243(2), 113 S.E.2d 225 wherein similar language was approved. It should be remembered that the word 'verdict' is derived from the Latin 'verdictum,' which translates as a 'true declaration.' Its meaning in law is 'a true saying.' Anthony v. Anthony, 103 Ga. 250, 29 S.E. 923. Accordingly, there is no merit to the first enumeration.

2. The second enumeration of error contends improper argument by the prosecutor when he said 'He (the defendant) can pay fifteen cents and ride out to your community where your wife or your mother or your daughter is.' (T. 273). When this was said by the district attorney an objection was made to the effect that it was improper argument in that it was 'highly inflammatory.' The court overruled the motion.

It must be noted that the allegedly improper argument was not made during the first phase of the trial, that in which the jury was to pass upon the...