Moyer v. State, No. 65053

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: McMURRAY
• Citation: 298 S.E.2d 308,164 Ga.App. 629
• Parties: MOYER v. The STATE.
• Decision Date: 03 December 1982
• Docket Number: No. 65053

Page 308

298 S.E.2d 308 164 Ga.App. 629 MOYER
v.
The STATE. No. 65053. Court of Appeals of Georgia. Dec. 3, 1982.

Page 309

[164 Ga.App. 631] Stephen E. Curry, Augusta, for appellant.

Sam B. Sibley, Jr., Dist. Atty., Augusta, for appellee.

[164 Ga.App. 629] McMURRAY, Presiding Judge.

Defendant and two others were indicted for the offense of theft by taking a motor vehicle (Code Ann. §§ 26-1802 (Ga.L.1978, pp. 2257, 2258) and 26-1812 (c. 1) (1) (Ga.L.1981, pp. 1552, 1553, 1576)). This defendant was tried and convicted and sentenced to serve three years for the offense of criminal attempt: theft by taking a motor vehicle; the jury having returned a verdict of guilty of "attempt to steal" at which time the court instructed the jury foreman to write in there "guilty of attempt to steal an automobile" over the objection of [164 Ga.App. 630] the counsel for defendant. The verdict was republished finding the defendant guilty of "attempt to steal an automobile," and the jury was polled as to whether this was their verdict. Defendant appeals after denial of his motion for new trial enumerating error that the trial judge improperly instructed the jury foreman, without further inquiry and without further deliberation by jurors, to complete a verdict in which there was a substantial omission. Held:

1. The reading aloud in open court of a written verdict signed by the foreman of the jury constitutes its publication. Haughton v. Judsen, 116 Ga.App. 308, 311(2), 157 S.E.2d 297; Nicholson v. State, 133 Ga.App. 819, 820(3), 212 S.E.2d 474. However, if the verdict is merely imperfect and informal, but the intention of the jury is clearly expressed, then the trial court should have the verdict put in proper form in accordance with that intention. Cothran v. Donaldson, 49 Ga. 458(2); Nicholson v. State, 133 Ga.App. 819, 820(3), 212 S.E.2d 474, supra. But substantial omissions are not to be supplied by the court. See Mayo v. Keaton, 78 Ga. 125(a), 2 S.E. 687. In the case sub judice there was some evidence that there had been an attempt to steal a television set in the automobile in question and it very well could have been the intention of the jury to so find. However, there were no instructions to the jury with reference to the stealing of anything other than the motor vehicle. In addition to the charge as to the definition of motor vehicle theft and after charging the form of the verdict if the defendant were guilty or if the jury determined the defendant...