Montgomery v. State, 47840
| Decision Date | 06 February 1973 |
| Docket Number | No. 47840,No. 2,47840,2 |
| Citation | 128 Ga.App. 116,195 S.E.2d 784 |
| Parties | Paul E. MONTGOMERY v. The STATE |
| Court | Georgia Court of Appeals |
Howard L. Stopeck, Atlanta, for appellant.
Ben F. Smith, Dist. Atty., Roy E. Barnes, Marietta, for appellee.
Syllabus Opinion by the Court
Defendant appeals from his conviction for burglary and from the denial of his motion for a new trial. Defendant was apprehended at the scene of the burglary. He was identified at the trial by an unimpeached eyewitness (who had known him previously) as the man who was receiving goods handed through a window by an unknown person inside the house.
1. Defendant contends he was denied his right to an individual examination of each juror when the court refused to allow three questions. As all these questions related to the legal presumption of innocence, the questions were not proper. McNeal v. State, 228 Ga. 633, 187 S.E.2d 271.
2. Defendant contends there was a fatal variance between the allegata and probata in two particulars: that he was charged with entering while the proof showed he was never in the house at all; and that the indictment described the house as the dwelling of a certain woman while the proof showed she did not live there but only occupied it occasionally. The first point is answered by Code Ann. § 26-801 which states that a person who aids and abets is concerned in the commission of a crime and 'may be charged with and convicted of commission of the crime' as a party. See also Green v. State, 124 Ga.App. 469, 184 S.E.2d 194; Hannah v. State, 125 Ga.App. 596, 188 S.E.2d 401. The second point is also without merit. There is no requirement in the law that a house be continuously occupied in order to be a 'dwelling'. It is sufficient that it is occasionally occupied for residential purposes and any such lawful occupant has a superior right as against burglars for the purpose of an indictment. See Houston v. State, 38 Ga. 165.
3. Defendant contends the court erred in charging the jury on conspiracy when he was not indicted for it and therefore was not prepared to defend on the charge. When the evidence tends to show a conspiracy, a charge upon the subject is not error even if not alleged in the indictment. Bryant v. State, 65 Ga.App. 523, 16 S.E.2d 241; Banks v. State, 74 Ga.App. 449, 40 S.E.2d 103.
4. Defendant contends the court erred in giving a standard charge on resolving conflicting testimony when there was none. He contends this unauthorized charge drew attention to, and was therefore prohibited comment upon, his failure to testify. We cannot agree with this logic. Nothing the court said could possibly have highlighted or diminished the patently obvious fact that the defense put on no case at all-not even an unsworn statement from the defendant simply denying his guilt. The charge on conflicting evidence, while unauthorized, was not harmful to the defendant. This is one of those rare criminal cases in which the evidence demands the verdict and the doctrine of harmless error may be applied. Hall v. State, 8 Ga.App. 747, 70 S.E. 211.
5. All defendant's other enumerations of error are without merit.
Judgment affirmed.
I concur fully in the opinion in this case, but I wish to elaborate as to Division 1. At the beginning of this criminal case, defendant's counsel sought to interrogate the jurors by inquiring as to whether each of them believed in that principle of law which says that the defendant is presumed innocent until the prosecution proves his guilt beyond a reasonable doubt. The court advised counsel that at the beginning of the term of court, all of these jurors had been instructed by the court as to certain legal principles governing criminal cases, including the one counsel was seeking to propound, and the jurors had pledged themselves to be governed by such instructions. Counsel was then advised that he could not ask the question. Counsel insisted that he did not hear such instructions and response at the beginning of the term, and thereafter sought to propound certain other questions involving legal principles, and the court refused to allow him to do so.
Code Ann. § 59-705 (Ga.L.1949, p. 1082; 1951, pp. 214, 215) gives to a defendant the right to an individual examination of each juror, after the administration of a preliminary oath, and 'after the usual voir dire questions have been put by the court, and in such examination the counsel for either party shall have the right to inquire of the individual jurors,' etc. (...
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...from either side, what would your verdict be?"); Mills v. State, 137 Ga.App. 305(2), 223 S.E.2d 498 (1976); Montgomery v. State, 128 Ga.App. 116(1), 195 S.E.2d 784 (1973); the weight to be given the fact that the defendant has been charged or indicted, Todd v. State, 243 Ga. 539(7), 255 S.E......
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...and any such lawful occupant has a superior right as against burglars for the purpose of an indictment." Montgomery v. State , 128 Ga.App. 116, 195 S.E.2d 784, 785 (Ga. Ct. App. 1973) (citing Houston v. State , 38 Ga. 165 (1868) ).4 Emily Anne's testimony suggests that her mother would have......