Jones v. State, 34666

• Decision Date: 09 June 1953
• Docket Number: No. 2,No. 34666,34666,2
• Parties: JONES v. STATE
• Court: Georgia Court of Appeals

Page 810

76 S.E.2d 810

88 Ga.App. 330

JONES v. STATE.

No. 34666.

Court of Appeals of Georgia, Division No. 2.

June 9, 1953.

Thomas W. Johnson, H. T. O'Neal, Jr., Macon, for plaintiff in error.

Wm. M. West, Sol. Gen., Chas. F. Adams, Asst. Sol. Gen., Macon, for defendant in error.

Syllabus Opinion by the Court.

CARLISLE, Judge.

Under an indictment for the murder of Willie Frank Jones, Bertha Jones was convicted of voluntary manslaughter and sentenced to serve a minimum and a maximum of 20 years in the penitentiary. Her motion for new trial, based on the usual general grounds and five special grounds, was overruled, and she has appealed to this court for a review of the errors assigned.

1. It did not constitute reversible error for the court, in a criminal case, to fail to instruct the jury that 'the indictment is not evidence in the case, it has no probative value, you will not consider the finding of this indictment as any evidence of the defendant's guilt,' in connection with the following excerpt from the charge: 'Gentlemen of the jury, the grand jury of Bibb County has returned an indictment against Bertha Jones, the defendant at the bar, in which she is charged with the offense of murder, in the form and manner alleged in this indictment, which indictment you will have out with you, gentlemen, and which will be available to you for your inspection,' where, immediately following the quoted excerpt, the court charged: 'To this indictment the defendant has entered her plea of not guilty, and the indictment on the one hand and the plea of not guilt on the other, form the issue which you, as jurors, have been impanelled to try. The burden is upon the State in this case to prove to a reasonable and moral certainty and beyond a reasonable doubt every material allegation in the indictment. The defendant enters upon her trial with the presumption of innocence in her favor and this presumption remains with her throughout the trial unless and until it is overcome by evidence sufficiently strong to satisfy you of her guilt, as charged, beyond a reasonable doubt.' Nor is the qhoted excerpt, upon which error is assigned, subject to the criticism that the grand jury had adjudged the defendant guilty. See in this latter connection, Gray v. State, 66 Ga.App. 50, 16 S.E.2d 916. Special ground 1 is without merit.

2. A charge by the court on the defendant's statement to the jury in the exact language of Code, §§ 38-415 is sufficient; and a failure to instruct the jury that it might believe part and reject part of the statement was not erroneous. Coggeshall v. State, 161 Ga. 259, 265(4), 131 S.E. 57, and citations. Special ground 2 is without merit.

3. Where there is both direct and circumstantial evidence tending to establish the defendant's guilt, it is not error for the trial court to give in charge to the jury the law on circumstantial evidence contained in Code, §§ 38-102 and 38-109. Loomis v. State, 78 Ga.App. 336, 338(10), 51 S.E.2d 33; and see Porter v. State, 42 Ga.App. 221, 155 S.E. 509.

4. Properly construed, special ground 4 assigns error solely upon the ground that, while one of the defendant's witnesses, who had testified as to her good character, was on cross-examination by counsel for the State, he was asked, 'Would it affect your opinion of her reputation if you knew that she carried in her bosom a .32 caliber Colt pistol?' There was evidence by at least one witness that the defendant was carrying a pistol around in the bosom of her dress prior to the homicide. The question propounded was a proper one under the circumstances in which it was asked. Maner v. State, 45 Ga.App. 594, 598(3), 165 S.E. 305, and citations. Special ground 4 is without merit.

5. In special ground 5 error is assigned upon the action of the court in giving the following instructions to the jury, when, after the jury entered upon a deliberation of the case, the jurors returned to the courtroom and their foreman inquired of the court whether or not a defendant serving a specific number of years could be paroled before serving the complete sentence: 'I will answer that question for you in this way. It is not a proper concern of the court's or the jury's as to what some other State authority may or may...