Hunsinger v. State

• Decision Date: 10 July 1969
• Docket Number: No. 25250,25250
• Citation: 225 Ga. 426,169 S.E.2d 286
• Parties: Ronald Frank HUNSINGER v. The STATE.
• Court: Georgia Supreme Court

Page 286

169 S.E.2d 286

225 Ga. 426

Ronald Frank HUNSINGER v. The STATE.

No. 25250.

Supreme Court of Georgia.

July 10, 1969.

Syllabus by the Court

A charge on reasonable doubt which excludes from the jurors' consideration elements which could properly create a reasonable doubt in their minds is error.

Grady C. Pittard, Jr., Athens, for appellant.

Nat Hancock, Dist. Atty., Jefferson, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.

NICHOLS, Justice.

Ronald Frank Hunsinger was indicted and convicted under an indictment charging him and three others with robbery 'violently by force or use of offensive weapon.' The defendant was sentenced to twelve years in the penitentiary and he appeals from such conviction and sentence.

1. The first and fourteenth enumerations of error complain of admitting into evidence a waiver of counsel signed by the defendant as well as a 'statement of the defendant' signed by the defendant. A separate hearing was held out of the presence of the jury where testimony was adduced showing that the criteria set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, to authorize the introduction of the statement into evidence were met. The jury was returned to the jury box and again the testimony relating to the circumstances surrounding the giving of such statement were detailed with vigorous cross-examination by counsel for the defendant. The evidence introduced by the State authorized the admission of such documents into evidence and the enumeration of error (No. 12) relating to the refusal to permit the defendant to introduce evidence in opposition to such prima facie case need not be passed upon inasmuch as the case is being reversed on other grounds, and on another trial it will be presumed that the trial court will permit the defendant to introduce evidence to rebut the State showing as to voluntariness.

(a) Nor did the trial court err (as contended in the thirteenth enumeration of error) in permitting the G.B.I. agent who interviewed the defendant to state the conclusion that the statement was voluntarily given.

2. A hearing on a motion to suppress evidence obtained at the time of the defendant's arrest was held prior to the trial, and the second enumeration of error complains of the overruling of such motion.

The officers who made the arrest and search were notified by radio of the robbery and given a description of the automobile allegedly used in connection with the robbery including its tag number and the number of occupants. Four minutes later, at approximately 2:14 a.m. they spotted the automobile being driven through town, stopped it, arrested the occupants and searched the automobile where the proceeds of the crime were discovered as well as a gun and mask allegedly used in the robbery.

No contention is made that the arrest was not a lawful one, and the search of the motor vehicle in which the defendant was a passenger for things connected with the crime for which he was arrested was not unlawful. See Cash v. State, 222 Ga. 55, 148 S.E.2d 420; Watts v. Cannon, 224 Ga. 797, 164 S.E.2d 780, and citations.

3. The third enumeration of error complains that the trial court erred in overruling the defendant's demurrer to the indictment without hearing argument from defendant's counsel in support of such demurrer. No contention is made that the judgment rendered constituted error, and any defect in procedure in arriving at the proper result would at most constitute harmless error.

4. Under the decision in Jones v. State, 224 Ga. 283, 161 S.E.2d 302 (judgment modified on other grounds), where counsel for defendant signed a written waiver of the list of witnesses to be used against the defendant, no question is presented for decision by an enumeration of error complaining of the use of a co-indictee as a witness against the defendant. Accordingly, the fifth and tenth enumerations of error are without merit.

5. The sixth enumeration of error complains that the trial court erred in permitting the G.B.I. agent who had investigated the case, and who was a witness for the State, to remain in the courtroom during the trial. Under the decision in Dye v. State, 220 Ga. 113, 137 S.E.2d 465, and the cases cited, this action of the trial court was not error.

6. The seventh enumeration of error complains of the alleged illegal admission of hearsay testimony. The testimony sought to be excluded was admissible to explain conduct. See Jones v. State, supra, and citations.

7. Enumerations of error numbered 8, 9, 11 and 15 all complain that the trial court restricted the defendant's right to a thorough and sifting cross examination of the State's witnesses. '(A)s stated in Moore v. State, 221 Ga. 636, 639, 146 S.E.2d 895, 899 and in numerous other decisions of this court: '(T)he scope of the cross-examination rests largely within the discretion of the trial judge, to control this right within reasonable bounds, and his discretion will not be controlled by a reviewing court unless it is abused.' See also Gravitt v. State, 220 Ga. 781, 785(6), 141 S.E.2d 893; Post v. State, 201 Ga. 81, 84, 39 S.E.2d 1. The trial judge may restrict the cross examination to matters material to the issues (Waller v. State, 213 Ga. 291, 294, 99 S.E.2d 113; Clifton v. State, 187 Ga. 502, 508, 2 S.E.2d 102), and 'may also restrain useless and unnecessary repetition of questions which have been asked and fully answered.' Clifton v. State, supra; Sims v. State, 177 Ga. 266(2), 170 S.E. 58; Thompson v. State, 166 Ga. 758(10), 144 S.E. 301.' Sullivan v. State, 222 Ga. 691(2), 152 S.E.2d 382.

Each of the above enumerations of error complains of the refusal to permit the repetition of evidence already adduced, and the refusal to permit counsel for the defendant to again cover the same evidence was not an abridgment of the right to a thorough and sifting cross examination.

8. During the trial of the case and after the State had rested, counsel for the defendant made the following statement to the court: 'The defendant is going to take the stand to make an unsworn statement. We request the court to inform him of his rights in this regard. That is, of any defendant in a criminal case.' The trial court then advised the defendant of his right to make an unsworn statement following generally the language of Code Ann. § 38-415 insofar as it deals with an unsworn statement. In his brief Code Ann. §§ 38-415, 38-416 and Art. I. Sec. I, Par. VI of the Constitution (Code Ann. § 2-106) are cited in support of the enumeration of error, and the contention is made that the court did not instruct the defendant of all his rights under such authorities.

The defendant was represented by competent counsel who announced that the defendant was going to make an unsworn statement and requested that the defendant be instructed in this regard. The addition of the language: 'That is, of any defendant in a criminal case,' must be construed as...