Hunt v. State
| Decision Date | 01 February 1941 |
| Docket Number | 28876. |
| Citation | 13 S.E.2d 117,64 Ga.App. 320 |
| Parties | HUNT v. STATE. |
| Court | Georgia Court of Appeals |
See also, 13 S.E.2d 121.
Milton M. Ferrell and Wallace Miller, Jr., both of Macon, for plaintiff in error.
Chas H. Garrett, Sol. Gen., and Norman E. English, Asst. Sol. Gen., both of Macon, for defendant in error.
1. The bill of exceptions recites that the motion for a new trial was overruled on June 8, 1940, and that the bill of exceptions was presented or tendered to the trial judge for certification on July 16, 1940. It therefore appears from the recitals in the bill of exceptions that it was not tendered within the time prescribed by law (20 days, Code, § 6-903) and it would ordinarily be dismissed. However, it is well settled that reference may be had to either the bill of exceptions, the certificate of the judge, or the transcript of the record, in determining whether or not a bill of exceptions has been tendered within the time prescribed by law. Coker v. Life & Cas. Ins. Co., 180 Ga. 525, 526, 179 S.E. 626. The record discloses that the motion for new trial was overruled on July 9, 1940, and where there is a variance between the bill of exceptions and the record, the latter controls. This being so, the bill of exceptions was tendered in time, and is not subject to be dismissed on the ground that this court has no jurisdiction of the case because it was not tendered within the time prescribed by law. Dismuke v. Trammell 64 Ga. 428; May v. State, 90 Ga. 793, 800 (3), 17 S.E. 108.
2. Arthur Lee Hunt was convicted of burglary of the dwelling house of W. T. Williford, having been jointly indicted with Milton Wright and Lewis Jackson. His motion for new trial was overruled and he excepted. The defendant made no statement and introduced no evidence. W. T. Williford testified that his house was broken into on the night named in the indictment and that approximately seven articles were taken therefrom which were two days later recovered by the police, and upon identification returned to him by the police. O. R. Stokes, deputy sheriff, testified that the burglary was reported to him and that several days later he obtained certain information from one Mattie Williams which led him to a vacant house on Ross Street Place. He was accompanied to the house about 2:30 A.M. by Captain Pearce and Mr. Pittman, both fellow officers, and Sammy Morris and Jim Heywood, negro spotters, who were assisting the police department. He found a new 1937-model Buick automobile with an Ohio license tag parked near Ross Street Place. The officers went to the front door and the negroes were sent around to the back. The officers were not able to persuade the occupants of this house to open the door; they knocked and could hear the occupants moving around; they knocked again and called out to them to open the door, and the occupants asked who it was at the door and they were told that it was the police. Still they did not open the door, and finally Mr. Stokes ran against the door and knocked it open, and when he did he accosted Milton Wright standing by the only piece of furniture in the room, which was an old iron bed with the legs and feet broken off and propped up on some wooden boxes in the middle of the floor. Two other occupants of the room ran out of the room into the kitchen, and Mr. Stokes followed them in there and left Milton Wright to be taken care of by Captain Pearce. Jim Heywood captured one of the men who ran into the kitchen, and he turned out to be Lewis Jackson. The defendant, armed with a shotgun, jumped out of the back window and was disarmed by Sammy Morris but he escaped. He was arrested in Ohio and about three years after the date of the alleged crime was returned from the penitentiary in Ohio to Macon for trial. Sammy Morris testified that he went with the arresting officers and that he was sent to the back; that the defendant jumped out of the window and that he knocked a shotgun out of the defendant's hand. Mattie Williams testified that she had been to ride with the defendant on two occasions before the burglary in 1937, in a Buick Sedan, and that Milton Wright, one of the boys jointly indicted with the defendant, was with him and the defendant told her that he stayed on Ross Street Place.
The evidence authorized a finding that the house was used not so much as a residence but as a rendezvous for assembling or at least concealing the stolen articles (booty), and the whole evidence was sufficient to authorize a finding that the defendant participated in the burglary and shared in the criminal design. The evidence authorized the verdict. Wynn v. State, 81 Ga. 743, 7 S.E. 737; Harris v. State, 84 Ga. 269, 10 S.E. 742; Mangham v. State, 87 Ga. 549, 551, 13 S.E. 558; Gaines v. State, 89 Ga. 366, 15 S.E. 477.
3. In charging with reference to reasonable doubt, the judge made reference to the defendant's statement, and elsewhere charged the jury: "Gentlemen, you are required to take the law as given you in charge by the Court and apply this to the facts you get from the witnesses and the defendant's statement, and to the one you apply the other and make your findings as to the truth of the case." The defendant contends that this reference to the defendant's statement was reversible error because the defendant did not make a statement, and that this was harmful in that it brought to the jury's attention the fact that the defendant had not made a statement, and created in the minds of the jury the thought that the defendant was under the duty of making a statement. In his brief the defendant urges that this charge was especially harmful in view of the fact that the judge also charged that the burden was on the defendant to make an...
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