Morton v. State, s. 49426
| Decision Date | 19 June 1974 |
| Docket Number | Nos. 49426,49427,No. 2,s. 49426,2 |
| Citation | 208 S.E.2d 134,132 Ga.App. 329 |
| Parties | Paul MORTON v. The STATE (two cases) |
| Court | Georgia Court of Appeals |
Melvin Robinson, Atlanta, for appellant.
Syllabus Opinion by the Court
The defendant appeals from a robbery conviction. It appears that two men in daylight entered a liquor store; that one identified as the defendant, who was black, bearded, with braided hair, held a hat over his hand as though concealing a gun, demanded money, was given the money in the cash register and the two left. The victim immediately notified police. Within minutes in the near vicinity uniformed car patrol officers saw two men running; they drove the car over to them; the men then separated and ran in different directions; one of the officers ran around a corner after the defendant and apprehended him. Onlookers pointed to a doorway near the point of capture and on investigation money later identified as the proceeds of the robbery was found lying loose just inside it. There was a police lineup within the next two hours including five bearded black men, although only the defendant had braided hair. The store proprietor testified positively that he recognized the defendant immediately by his face, took little notice of the others in the lineup, and did not know whether they had beards and braided hair or not. Held:
1. The reason for Code § 81-1104 prohibiting the judge from intimating his opinion as to what has been proved is to keep the jury from being influenced, not to keep the judge from making up his own mind. It is the prejudicial character of the remarks which constitutes the error. See Sorrow v. State, 32 Ga.App. 504, 123 S.E. 914; Scarborough v. State, 46 Ga. 26, 33. The court's statement to counsel for the defendant made between the first and second trials of this case, not before the jury, and dealing with the question of an interim bond, that he believed (from hearing the evidence on the first trial) that the defendant was guilty, cannot be made the basis for legal error where it is not contended that the court so acted as to communicate this belief to the jury during the trial.
2. The store proprietor positively identified the defendant as one of the two robbers; denied that he had seen him in the custody of officers after arrest and before the lineup procedure, and swore that he recognized him without regard to comparison with the other persons in the lineup. This case is not within the purview of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, where there was a motion to exclude an in-court identification on the ground that it was based on deficiencies inherent in a prior lineup identification. The enumerations of error going to the procedures associated with the identification of the defendant are without merit.
3. It is also contended that the defendant was illegally arrested and that his conviction...
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Quiller v. State
...a new trial.The purpose of this section is to keep the jury from being influenced by the judge's opinion, see Morton v. State , 132 Ga.App. 329, 330, 208 S.E.2d 134 (1974) (citing former Ga. Code Ann. § 81–1104), and it applies to statements made by the judge during preliminary instructions......
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Jones v. State, 76600
...opinion as an expert. The purpose of forbidding comment is to keep the jury from being influenced by the judge, Morton v. State, 132 Ga.App. 329, 330(1), 208 S.E.2d 134 (1974), so as to preserve inviolate the right of trial by jury, Crawford v. State, 139 Ga.App. 347, 228 S.E.2d 371 (1976).......
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Cotton v. the State.
...has been proved is to keep the jury from being influenced, not to keep the judge from making up his own mind.” Morton v. State, 132 Ga.App. 329, 330(1), 208 S.E.2d 134 (1974). Cotton attempts to equate the trial court with a jury as a “finder of fact,” citing the rule that a juror may not a......
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Chumley v. State
...from intimating his opinion as to what has been proved is to keep the jury from being influenced. . . . [Cits.]" Morton v. State, 132 Ga.App. 329, 330(1), 208 S.E.2d 134 (1974). Regardless of any agreement between the attorneys as to the admissibility of Chumley's statement, the truthfulnes......