Lundy v. State

• Decision Date: 17 October 1973
• Docket Number: No. 3,No. 48682,48682,3
• Citation: 130 Ga.App. 171,202 S.E.2d 536
• Parties: Charles H. LUNDY v. The STATE
• Court: Georgia Court of Appeals

Page 536

202 S.E.2d 536

130 Ga.App. 171

Charles H. LUNDY v. The STATE.

No. 48682.

Court of Appeals of Georgia, Division No. 3.

Oct. 17, 1973.

Rehearing Denied Nov. 2, 1973.

Gale W. Mull, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Morris H. Rosenberg, Atlanta, for appellee. Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Charles H. Lundy was convicted of burglary of the Techwood Homes Rental Office and of simple battery, and he appeals, enumerating as error: (1) overruling of his motion for new trial, (2) refusal of the court to permit questioning of jurors on the voir dire as to whether they thought the United States Supreme Court has gone too far in protecting the rights of persons accused of crime, and whether they understood that an indictment was only an accusation, (3) admitting, over an objection of immateriality testimony of a state's witness, a policeman, that he had resigned from the police force of Atlanta because, having been shot twice within a year, he had become apprehensive of losing his life, (4) admitting, over objection that it was hearsay, testimony of a policeman that a man, not present at the trial, but who had seen the burglary in process and reported it to the police and shortly after the event had ridden around the immediate neighborhood with the police looking for the burglars, had seen and identified two men who had fled the scene of the burglary and stated to the police 'I believe that is them,' and (5) admitting on the bifurcated sentencing portion of the trial (after a verdict of guilty) a plea of nolo contendere by the defendant on an indictment for larceny, over objection that the plea had been entered prior to the adoption of the statute providing for the bifurcated sentencing procedure and that the admission of the plea would give an ex post facto application to the statute. Held:

1. (a) The evidence is amply sufficient to sustain the verdict as to each charge. The battery charge resulted from defendant's kicking a policeman in the groin as he was being arrested on the charge of burglary, and there was ample testimony about it.

( b) Relative to the burglary charge, the contention that defendant was not shown to have entered the rental office does not require a different conclusion. The testimony of witnesses who saw the burglary in process was that a confederate of the defendant was inside, while the defendant squatted near a window on the outside. It would appear that he was there as a lookout (his fingerprints were found on the window) and he was thus participating in the commission of the burglary. Code Ann. § 26-801; Swarn v. State, 230 Ga. 552, 198 S.E.2d 177. As a witness approached the scene appellant pulled a gun and directed that the witness leave, saying 'I'll kill you. This is an armed robbery!' Shortly after the burglary was committed he was arrested and had in his possession a pistol and a pair of knucks, and was wearing the same kind of clothing as one of those seen at the burglary. The general grounds are wholly without merit.

2. (a) In examining a prospective juror, counsel for the accused should not ask technical legal questions or his opinion concerning them. It is the duty of the court to instruct the jury on legal questions which are appropriate to the issues on trial.

'Although counsel has a right to inquire as to the qualifications of the veniremen and their prejudices so as to provide a foundation for a challenge for cause or a peremptory challenge (see Kreuter v. United States (10 Cir.) 376 F.2d 654, 656), it is well settled that it is simply not the province of counsel to question prospective jurors as to their attitudes or knowledge of matters of law. (Citations). As the court observed in State v. Smith (422 S.W.2d 50, 67), 'Asking whether prospective jurors have any personal feelings for or against a rule of law is like asking whether they think the law is good or bad. '' People v. Boulware, 29 N.Y.2d 135, 324 N.Y.S.2d 30, 272 N.E.2d 538. Questions as to their knowledge or attitudes relating to a particular rule of law are irrelevant to their functions as jurors and hence, have no bearing on their qualifications. People v. Lobb, 17 Ill.2d 287, 161 N.E.2d 325. 'Thus, although counsel is not privileged to elicit viewpoints relating to matters of law, he is entitled to ask whether a prospective juror would obey the court's instructions. (State v. Smith (Mo.Sup.) 422 S.W.2d 50, 68) . . . Consequently, though counsel should be given a wide degree of latitude in determining the qualification or fairness of a prospective juror, '(t)he trial court not only may, but should, preclude counsel from interrogating on issues of law.' (Oliver v. State, 85 Nev. 418, 423, 456 P.2d 431, 434).' People v. Boulware, 29 N.Y.2d 135, 324 N.Y.S.2d 30, 272 N.E.2d 538, supra. Views which a juror may hold relative to the propriety or impropriety of any law, including that resulting from decisions of the Supreme Court, are irrelevant; what is relevant is whether he is willing to follow the law as given in charge and apply it to the facts.

( b) A juror was also asked whether he understood that an indictment is merely an accusation and is no indication as to the guilt or innocence of the accused, and the court interposed that this was a matter about which he would instruct the jury, and was not a proper matter for voir dire.

'In examining a prospective juror, counsel for the accused should not ask technical legal questions in regard to the presumption of innocence, but should confine his questions to those which may illustrate any prejudice of the juror against the accused, or any interest of the juror in the cause.' McNeal v. State, 228 Ga. 633, 636, 187 S.E.2d...