Kirby v. State

• Decision Date: 28 April 1978
• Docket Number: No. 3,Nos. 55604,55605,s. 55604,3
• Citation: Kirby v. State, 145 Ga.App. 813, 245 S.E.2d 43 (Ga. App. 1978)
• Parties: Eddie KIRBY v. The STATE. Gary TALLEY v. The STATE
• Court: Georgia Court of Appeals

Page 43

245 S.E.2d 43

145 Ga.App. 813

Eddie KIRBY v.The STATE.

Gary TALLEY v.The STATE.

Nos. 55604, 55605.

Court of Appeals of Georgia,Division No. 3.

April 28, 1978.

William Jerry Westbrook, Summerville, for Kirby.

Thomas J. Espy, Jr., Summerville, for Talley.

William M. Campbell, Dist. Atty., Rossville, James A. Meaney, III, Asst. Dist. Atty., Summerville, for appellee.

DEEN, Presiding Judge.

Eddie Kirby and Gary Talley appeal from their conviction of aggravated assault alleging that the trial court erred in denying their motion for a new trial.

1.It is contended that the trial court erred in permitting a medical doctor to qualify as an expert and subsequently failing to charge the jury in regard to expert testimony."It is not error, in the absence of a timely written request, for the court to fail to charge on the weight to be given the testimony of an expert witness."Davis v. State, 205 Ga. 248(2), 53 S.E.2d 545(1949);seeGodwin v. Atlantic C. L. R. Co., 120 Ga. 747(6), 48 S.E. 139(1904);Cameron v. State, 111 Ga.App. 691, 143 S.E.2d 189(1965).The defendant in any case is not relieved " '. . . from the necessity of requesting instructions, or making timely objection in the trial court on the failure to give instructions, except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.'(Cits.)"Mullins v. State, 144 Ga.App. 22, 23, 240 S.E.2d 297, 298(1977).As no harm is shown, this enumeration is without merit.

2.Error is asserted in the admission of lay testimony to establish the condition and appearance of the victim after the assault and the failure of the trial court to charge on lay opinion evidence.One of the victim's friends and his father gave their opinions as to the change in his physical condition since he was assaulted.Defendant's objection to the opinion evidence given by the victim's friend was sustained and the court confined the witness to answering the questions as to what he had observed.We find no error in this ruling.No objection was made to any of the father's testimony except an objection that a proper foundation had not been laid for his testimony about the type of work the victim could do.This objection was properly overruled, as the record indicates that a proper foundation had been laid for this question."A nonexpert witness who is familiar with the physical condition and capacity of the plaintiff before the time of the alleged injuries may properly testify to the effect of such injuries based on his observations of the plaintiff undertaking to work subsequent to the injury as compared to his observations of his undertaking to work prior to the time of the alleged injury."American Fidelity and Casualty Co., Inc. v. Farmer, 77 Ga.App. 166(17), 48 S.E.2d 122(1948).SeeBrewer v. Henson, 96 Ga.App. 501(2), 100 S.E.2d 661(1957).As no request for a charge on lay opinion evidence was requested and defendant's objection was sustained, there was no harm in the trial court's omission.SeeMullins v. State, supra.

3.Appellant complains that the trial court's refusal to declare a mistrial after the close of the state's argument constituted reversible error.Closing arguments were not recorded, and there is nothing in the record to indicate that the trial court abused its discretion in denying the motion for a mistrial....