McGruder v. State

• Citation: 213 Ga. 259,98 S.E.2d 564
• Decision Date: 15 May 1957
• Docket Number: No. 19659,19659
• Parties: Albert McGRUDER v. The STATE.
• Court: Supreme Court of Georgia

Page 564

98 S.E.2d 564

213 Ga. 259

Albert McGRUDER v. The STATE.

No. 19659.

Supreme Court of Georgia.

May 15, 1957.

Syllabus by the Court

1. Generally, the proof of guilt of a crime is not confined to the day mentioned in the indictment, but may extend to any day previous to the finding of the bill and within the statute of limitations for the prosecution of the offense.

2. The trial judge erred in stating to the jury in his charge that he would give them the statute from the Code which the defendant was alleged to have violated, and then reading to them the statute providing the punishment for robbery by open force or violence.

3. The failure to instruct the jury that the intent to steal is a substantive element in the commission of the offense of robbery was reversible error.

4. Since the only evidence in this case on an essential element of the crime charged was circumstantial, the court should have instructed the jury on the rules of law in regard to circumstantial evidence.

5. The court's use of the words 'reasonable and moral certainty' in connection with the words 'beyond a reasonable doubt' would not require a new trial.

6. The excerpt from the charge complained of in ground 8 of the amended motion did not intimate an opinion by the court.

7. The court erred in instructing the jury that whatever punishment they fixed, 'it will be that unless and until it is disturbed by the parole or pardon board.'

8. It was not reversible error to use the words 'interposes' and 'claims' in connection with the charge on the defense of alibi.

9. It was error to permit a witness for the State, over timely objections of the defendant, to remain in the courtroom during the examination of other witnesses, after the rule had been invoked and the witnesses had been ordered sequestered, and subsequently to allow this witness to testify for the State.

10. There was no error in overruling the general grounds of the motion for new trial.

11. For reasons set forth in the opinion, a new trial must be granted in this case.

Grace W. Thomas, Ruby Poole, Atlanta, A. L. Haden, Columbus, for plaintiff in error.

John H. Land, Solicitor-Gen., Columbus, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.

HEAD, Justice.

Albert McGruder was charged with the offense of robbery by force. The indictment alleged that 'said accused, in the County of Marion and State of Georgia, did on the 27th day of September, 1956, with force of arms, wrongfully, fraudulently, and violently, by open force and violence and intimidation, take from the person of Thomas L. Robinson, without his consent and with intent to steal the same, $40 in money, said money being in United States currency, a further and better description of which is unknown to the grand jurors, and of the value of $40, and the property of the said Thomas L. Robinson, * * *'

The jury returned a verdict of guilty without a recommendation of mercy. The defendant's motion for new trial, as amended, was denied, and the exception is to that judgment.

1. Ground 4 of the motion for new trial, as amended, shows that, when the solicitor-general outlined the case to the jury, he stated that he intended to prove that the offense was committed on September 3, whereas the indictment had alleged that the offense was committed on September 27, 1956. Counsel for the defendant asked that the solicitor be limited to the date alleged in the indictment, for the reason that the defense of alibi was the main defense of the defendant. The error assigned in this ground is the failure of the court to sustain this motion, and the admission of evidence, over objection, that the alleged offense was committed on September 3.

It is the general rule that evidence of guilt is not restricted to the day mentioned in the indictment, but may extend to any day previous to the finding of the bill and within the statute of limitations for the prosecution of the offense. McBryde v. State, 34 Ga. 202; McVeigh v. State, 205 Ga. 326, 342, 53 S.E.2d 462.

It does not appear that a request for continuance was made because of the absence of witnesses to prove alibi, by reason of surprise in the solicitor's attempt to prove the commission of the crime on a date other than that charged in the indictment. A number of witnesses testified for the defendant as to the impossibility of his being present at the scene of the crime on the date of September 3. This ground does not require the grant of a new trial.

2. Ground 5 of the amended motion asserts that the court erred in failing to charge Code, § 26-2501, giving the definition of robbery. The court charged as follows: 'Now gentlemen, here is the statute that the defendant is alleged to have violated and I give it to you from the Code. Robbery, by open force or violence, shall be punished by death unless the jury recommends mercy, in which event punishment shall be imprisonment in the penitentiary for life, provided, however, the jury in all cases may recommend that the defendant be imprisoned in the penitentiary for not less than four nor longer than twenty years.' It is contended that charging § 26-2502, giving the punishment of robbery, and not charging § 26-2501, defining robbery, led the jury to believe that it was the opinion of the court that the defendant was guilty of robbery by force.

The defendant was indicted, tried and convicted prior to the passage of the act approved January 7, 1957 (Ga.L.1957, p. ___), amending Chapter 26-25 of the Code, and the assignments of error made will be dealt with under the provisions of the Code prior to amendment.

'Upon the trial of a criminal case, the trial judge, in his charge to the jury, with or without request, should instruct them as to the general principles of the law which of necessity must be applied by them in reaching a correct conclusion upon the questions submitted for their consideration.' Sledge v. State, 99 Ga. 684, 26 S.E. 756. 'The jury should be informed of the crime charged, in order to enable them, by applying the law to the facts established by the evidence, to determine whether or not the accused is guilty.' McDow v. State, 113 Ga. 699, 39 S.E. 295.

The charge of the court in the present case did not, in specific terms, define the crime of robbery by force. The court read from the indictment the offense therein charged. Whether or not this would be a sufficient definition of the crime of robbery in this case is not the question made by the assignment of error. Error is assigned, first, on the failure to charge the definition of robbery in the language of § 26-2501. This section includes a definition of robbery by sudden snatching, which was not involved in the present case, and such a charge would not have been proper. Clay v. State, 122 Ga. 136, 50 S.E. 56.

The judge erred, however, as further contended in this ground, in stating to the jury that he would give to them the statute from the Code which the defendant was alleged to have violated, and then reading to them the Code section providing the punishment for robbery by open force or violence. This obviously was confusing and misleading to the jury, and was erroneous.

3. Ground 13 contends that the court erred in failing to instruct the jury that the intent to steal is an essential element of the crime of robbery.

An intent to steal is a substantive element in the commission of the offense of robbery, and the failure so to instruct the jury in this case was error. Sledge v. State, supra; Rutherford v. State, 183 Ga. 301, 188 S.E. 442; Nelson v. State, 203 Ga. 330(3), 46 S.E.2d 488.

4. Ground 6 contends that the court erred in failing to charge, even without a written request, on circumstantial evidence (Code, § 38-109). It is contended that, since there was no direct evidence that the defendant took the prosecutor's money, and the evidence on this essential element of the crime of robbery by force was purely circumstantial, a charge on the law of circumstantial evidence was required.

Counsel for the State, in response to this ground, rely upon that line of decisions by this court wherein it is said that 'A charge to the jury on circumstantial evidence is required only when a conviction depends entirely thereon.' Wise v. State, 209 Ga. 115, 70 S.E.2d 598, 599; Pippin v. State, 205 Ga. 316, 53 S.E.2d 482; Gentry v. State, 208 Ga. 370, 66 S.E.2d 913. This rule, in substance, has been stated and restated many times, and has been applied by this court in those cases wherein there was both direct and circumstantial evidence to sustain the charge contained in the bill of indictment. Counsel for the State have not cited, and our search has not revealed, a single case where an essential element of the crime charged was proved only by circumstantial evidence and this court said that a charge on circumstantial evidence was not required because there was some direct evidence pertaining to some other phase of the charge against the defendant. In a number of cases this court has stated the rule to be: 'There being some direct evidence on all the essential elements of the crime charged, the failure of the judge to charge the jury on the law of circumstantial evidence does not furnish cause for a new trial.' Wilson v. State, 152 Ga. 337, 110 S.E. 8; Bass v. State, 152 Ga. 415, 416, 110 S.E. 237; Powers v. State, 172 Ga. 1, 6, 157 S.E. 195; Long v. State, 175 Ga. 274, 165 S.E. 75; Harris v. State, 178 Ga. 746(2), 174 S.E. 240; Blocker v. State, 185 Ga. 322, 195 S.E. 207; Patterson v. State, 199 Ga. 773, 775(5), 35 S.E.2d 504; Campbell v. State, 202 Ga. 705, 707(3), 44 S.E.2d 903.

In Ramsey v. State, 212 Ga. 381, 382, 92 S.E.2d 866, 868, this court dealt with an assignment of error that the trial judge erred in charging: 'The court is not giving you as applicable to this case the rule of circumstantial evidence.' The defendant in that case had been charged with robbery by force, and the prosecutor had testified to facts...