Moyer v. State

Citation298 S.E.2d 308,164 Ga.App. 629
Decision Date03 December 1982
Docket NumberNo. 65053,65053
PartiesMOYER v. The STATE.
CourtUnited States Court of Appeals (Georgia)

Stephen E. Curry, Augusta, for appellant.

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

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 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 not guilty the court instructed the jury that might go further, "if you wish to [and] find the defendant guilty of the attempt to commit a crime," and the form of your verdict would be to find "the defendant guilty of an...

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3 cases
  • McKenzie v. State, s. 76328
    • United States
    • United States Court of Appeals (Georgia)
    • June 23, 1988
    ...sodomy, and the trial court had not instructed the jury on returning a verdict on an included offense. Compare Moyer v. State, 164 Ga.App. 629, 298 S.E.2d 308 (1982). Accordingly, appellants' convictions for sodomy must be The third victim testified that two men dressed in shorts and ski ma......
  • Hannula v. Ramey, 71290
    • United States
    • United States Court of Appeals (Georgia)
    • January 6, 1986
    ...expressed, then the trial court should have the verdict put in proper form in accordance with the jury's intention. Moyer v. State, 164 Ga.App. 629, 298 S.E.2d 308 (1982). Moreover, a judge is authorized to permit papers to be filed with him, but he is not required to do so. OCGA § 9-11-5; ......
  • Montford v. State
    • United States
    • United States Court of Appeals (Georgia)
    • December 3, 1982

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