Jackson v. State, 59391

• Decision Date: 29 May 1980
• Docket Number: No. 59391,59391
• Citation: 154 Ga.App. 139,267 S.E.2d 767
• Parties: JACKSON et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 767

267 S.E.2d 767

154 Ga.App. 139

JACKSON et al. v. The STATE.

No. 59391.

Court of Appeals of Georgia.

Argued Feb. 6, 1980.

Decided March 11, 1980.

Rehearing Denied March 26, 1980.

Certiorari Granted May 29, 1980.

Denmark Groover, Jr., Macon, Albert H. Dallas, Thomson, Roosevelt Warren, Sparta, for appellants.

Joseph H. Briley, Dist. Atty., for appellee.

BIRDSONG, Judge.

Thomas Irby Jackson and Jerome Denton were jointly indicted, tried and convicted in Hancock County for two counts of receiving stolen property. They enumerate four errors below. Held:

1. The trial court's failure to charge that a witness could be impeached by proof of his conviction of a felony or a crime involving moral turpitude, was not reversible error.

The state's case-in-chief came from the thief who stole the truck, welder, and tools from two shops in Washington and McDuffie Counties. On direct examination, the state elicited testimony from the thief that he was serving a two-year sentence for car theft and also had been convicted of car theft and burglary in 1970, motor vehicle theft in Texas, and theft by taking in Jesup, Georgia. The defense did not object to this testimony as being unsupported by authenticated records of conviction (see Grisson v. State, 148 Ga.App. 362(2), 251 S.E.2d 383; and White v. State, 147 Ga.App. 260, 248 S.E.2d 540). The defense did not touch on the matter of the witness' convictions in cross examination. The defense did not request a charge on impeachment of a witness by proof of a felony conviction. The trial court in its charge stated: "I will now charge you on the law of impeachment" and proceeded to instruct "to impeach a witness is to show . . . that such witness is unworthy of belief. . . . A witness may be impeached by disproving the facts testified to by him . . . or by proof of contradictory statements previously made by him . . . as to the matters relating to his . . . testimony (in) the case." Following the charge, the trial court asked the defense if there were any exceptions to the charge, to which the defense counsel responded, "no."

The error, if it was error in these circumstances to fail to instruct on impeachment by proof of felony conviction, was induced by the appellants, Hill v. State, 237 Ga. 523, 524-525, 228 S.E.2d 898. The evidence of the felony convictions had been introduced by the state, no doubt to minimize the effect of any impeachment efforts by the defense; the appellants made no attempt to rely on that testimony as impeaching the witness and if it was part of their defense, it was "undisclosed" (Hill, supra, p. 525, 228 S.E.2d 898) and was not brought to the trial court's attention. Most importantly, the matter of impeachment goes to a collateral issue in the case and not to the central issue of determination of guilt or innocence. Thomas v. State, 234 Ga. 615, 618, 216 S.E.2d 859; Hill, supra; see also Nelms v. State, 150 Ga.App. 720, 721, 258 S.E.2d 531. Therefore, appellants waived their right to enumerate error in this instance by failing to respond to the trial court's inquiry on any objections to the charge, White v. State, 243 Ga. 250, 253 S.E.2d 694; Thomas, supra; Mayfield v. State, 150 Ga.App. 807, 258 S.E.2d 613.

Appellants cite Harper v. State, 17 Ga.App. 561, 87 S.E. 808 and Rouse v. State, 2 Ga.App. 184(7), 58 S.E. 416 as authority that "while it is not incumbent on a trial judge . . . to charge the law as to impeachment of witnesses, still, where the subject is referred to in the charge, proper and adequate instructions thereon should be given." We do not think this principle supervenes the principles we have just followed in deciding the case. If the trial court had undertaken to instruct on impeachment by evidence of felony conviction or crimes involving moral turpitude, but had done so improperly or inadequately, then the principles which decide this case might then be inapplicable, and the result might be different.

2. It was not error, as appellant Jackson contends, for the trial court...