Mize v. State, 52773
| Citation | 140 Ga.App. 17,230 S.E.2d 81 |
| Decision Date | 18 October 1976 |
| Docket Number | No. 1,No. 52773,52773,1 |
| Parties | Gregory MIZE v. The STATE |
| Court | Georgia Court of Appeals |
Robinson, Harben, Armstrong & Millikan, Sam S. Harben, Jr., Gainesville, for appellant.
Douglas E. Smith, Gainesville, for appellee.
This is the third appeal by this appellant from a conviction of simple battery based on a single occurrence. The previous cases are reported in 131 Ga.App. 538, 206 S.E.2d 530 and 135 Ga.App. 561, 218 S.E.2d 450. At this third trial substantially the same evidence concerning the offense was presented as is recited in the previous reports. We find three of the five enumerations of error to be meritorious. Therefore we must again reverse for a new trial.
1. The first assignment deals with the charge to the jury wherein the trial court used in totidem verbis language from this court's previous opinion. The words assigned as error are the instruction that 'there is no requirement that the victim received great bodily harm . . . that some physical pain may be presumed to result from being firmly grabbed and squeezed.'
'We must . . . repeat the oft-decided principle, that language employed by a judge of a reviewing court in discussing a case, or in giving reasons for a decision, is not always appropriate for use by a trial judge in charging a jury.' Hunt v. Pollard, 55 Ga.App. 423, 426, 190 S.E. 71, 73. See also Bailey v. Todd, 126 Ga.App. 731, 736(6), 191 S.E.2d 547 and cits.
The raison d'etre for this principle was best expressed in Leonard v. State, 133 Ga. 435, 66 S.E. 251. There at page 437, 66 S.E. at 252, Justice Joseph Henry Lumpkin, grandson 1 of our State's first Chief Justice bearing the same name, said
In the instant case there was no testimony from the female prosecutrix as to her having sustained physical pain. Therefore it was reversible error to use the language from our previous opinion as to there being a presumption to this effect. 'To assume that an important fact in the case on trial has been admitted, and to so instruct the jury when no such admission has been made, is reversible error.' Cooper v. State, 2 Ga.App. 730(1), 59 S.E. 20).
2. The second enumeration of error also is meritorious. It avers that the court 'erred in allowing testimony over objection concerning alleged fights between defendant and persons other than the prosecuting witness upon whom the defendant was charged with having committed a simple battery for (the) reason that the defendant had been charged with battery on other such persons, had been tried and acquitted.' The illegally admitted evidence dealt with the subsequent fistic fracas between five black teen-agers and two white men which occurred after the prosecuting witness told her husband that some one had placed his hand upon the side of her body.
The transcript discloses that the able trial judge noted for the record authorities, both cases and text-book, upon which he relied in holding the evidence admissible as to the brouhaha. These were not applicable to the instant case because the general rule as to evidence of other crimes being inadmissible applied here rather than the exceptions. See Bacon v. State, 209 Ga. 261, 71 S.E.2d 615; Nooner v. State, 131 Ga.App. 563, 206 S.E.2d 660; Wooten v. State, 125 Ga.App 635, 188 S.E.2d 409 and Dawson v. State, 120 Ga.App. 242, 170 S.E.2d 45.
3. The third enumeration asserts error in the court's instruction concerning these other alleged offenses which the court charged were 'admissible for the consideration of the jury insofar only as it might tend to illustrate the...
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Porter v. State, 53442
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