Hayes v. State, 51053

• Decision Date: 25 November 1975
• Docket Number: No. 51053,3,Nos. 1,2,51053,s. 1
• Citation: 222 S.E.2d 193,136 Ga.App. 746
• Parties: Hoyt HAYES v. The STATE
• Court: Georgia Court of Appeals

Page 193

222 S.E.2d 193

136 Ga.App. 746

Hoyt HAYES v. The STATE.

No. 51053.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 25, 1975.

Paris & Burkett, Richard J. Burkett, Winder, for appellant.

Nat Hancock, Dist. Atty., Jefferson, for appellee.

EVANS, Judge.

Defendant was arrested and indicted for the crime of burglary. Having been tried and found guilty, he was sentenced to six years. Defendant appeals.

1. Defendant urges that taking the plea of a co-defendant in the presence of the entire jury panel from which the jury was to be selected was error. In Gray v. State, 13 Ga.App. 374, 79 S.E. 223, it is squarely held that a guilty plea of a jointly-indicted defendant is not admissible in evidence. How could the facts have been better placed before the jury than to allow the co-defendant to plead guilty in the presence of the jurors? The state had no need of introducing this plea in evidence because it had informed all of the jurors about it in open court and in their presence. Jurors are presumed to be possessed of normal intelligence. Code §§ 2-5102, 38-107; Atlantic Coast Line R. Co. v. Fulford, 33 Ga.App. 631, 127 S.E. 812; Bank of Loganville v. Briscoe, 93 Ga.App. 558, 559, 92 S.E.2d 326; Hodnett v. State, 197 Ga. 730, 732(2), 30 S.E.2d 606; George v. McCurdy, 42 Ga.App. 614, 617(2), 157 S.E. 219. Jurors are entitled to take note of anything that happens in their presence and hearing from the inception of the case. Sheridan v. Haggard, 95 Ga.App. 792, 793, 99 S.E.2d 163. This was error requiring the grant of a new trial.

2. Defendant argues that the reference in the trial judge's charge to the plea of guilty by his joint defendant was error. Code Ann. § 81-1104 prohibits the expression or intimation by a trial judge of his opinion as to what has or has not been proved or as to the built of the accused. The cases cited by defendant reveal that statements by the trial judge must amount to an opinion as to the legal status of the accused's co-defendant to amount to error. Thus, reference to a co-defendant as an 'accomplice' will be prohibited by Code Ann. § 81-1104. Sellers v. State, 41 Ga.App. 572, 153 S.E. 732; Millwood v. State, 102 Ga.App. 180(1), 115 S.E.2d 829. No cases cited hold that mere reference to the co-defendant's name and his plea of guilty is a prohibited opinion. The record reveals the trial judge warned the jury that it was concerned only with the guilt or innocence of the appellant. 'To determine whether or not an excerpt from the judge's charge to the jury amounts to an expression of opinion, this court will look to the setting of the expression in its connection with the whole charge and determine from the whole charge whether such expression transgressed the provision that the trial court is unauthorized to express an opinion as to what has or has not been proved.' Weathers Brothers Transfer Co. v. Jarrell, 72 Ga.App. 317(3c), 33 S.E.2d 805. Viewing the charge as a whole we conclude there was no error.

3. Defendant alleges that error was committed when the trial judge charged the jury with regard to the defense of alibi: 'Alibi as a defense involves the possibility of the accused's presence at the scene of the offense at the time of its commission.' There is no question as to the erroneous nature of this charge, but there is no showing whether the error is typographical or the result of a slip of the judge's tongue. If the former, then no reversible error is present. It the latter, we believe that looking at the charge as a whole it would be a mere slip of the tongue, not amounting to reversible error, for the trial judge immediately charged: 'Presence of the defendant at the scene of the crime alleged, or his involvement as a co-conspirator, is an essential element of the crime set forth in this indictment. And the burden of proof as to such issues rests upon the state.' We therefore conclude the error to have been harmless. Knight v. State, 130 Ga.App. 551, 203 S.E.2d 911.

4. Defendant's final enumeration of error concerns the jury charge with regard to circumstantial evidence: 'Now when circumstantial evidence is relied upon to establish the fact, the evidence must be such as to reasonably establish the theory relied upon to preponderate that theory, rather than any other reasonable hypothesis.' This court has long held that '(i)t is inapt for the trial judge on the trial of a criminal case to charge on the preponderance of evidence . . .' ,Ponder v. State, 18 Ga.App. 703(3), 90 S.E. 365. There is an apparent difference of opinion however as to whether the charge is harmless error when it is followed by a charge that the jury would not be authorized to convict on circumstantial evidence alone unless the proven facts excluded every other reasonable hypothesis or conclusion except that of the guilt of the accused and the trial judge otherwise makes it clear that the jury must find beyond a reasonable doubt that the defendant was guilty. This court has found such a charge to be...