Pittman v. State
| Decision Date | 14 July 1986 |
| Docket Number | No. 72402,72402 |
| Citation | 179 Ga.App. 760,348 S.E.2d 107 |
| Parties | PITTMAN v. The STATE. |
| Court | Georgia Court of Appeals |
Clyde M. Urquhart, Brunswick, for appellant.
Glenn Thomas, Jr., Dist. Atty., John B. Johnson III, Jesup, Asst. Dist. Atty., for appellee.
Appellant was convicted of child molestation and appeals.
1. Appellant contends the trial court erred by denying his motion in limine which sought to prevent the State from introducing evidence of a similar transaction. The basis of the motion was the State's failure to notify the defendant at least ten days prior to trial that it intended to introduce such evidence, as required by Rule 31.1 of the Uniform Rules of Superior Court. See 235 Ga. 853. The State argued then and now that the evidence of similar transactions falls within the exception to Rule 31.1 set forth in Rule 31.3(E) of the Uniform Rules of Superior Court. See 253 Ga. 854. That rule provides, in pertinent part: "Nothing in this rule is intended to prohibit the state from introducing evidence of similar transactions or occurrences which are ... immediately related in time and place to the charge being tried, as part of a single, continuous transaction."
The two incidents involved here were not part of a single continuous transaction, but occurred at separate times. Therefore, the exception relied upon by the State is not applicable. However, the State was unaware that two incidents of molestation had occurred until it interviewed the victim a second time; the State immediately notified appellant's counsel that two incidents were involved. Further, the indictment alleged that the offense charged occurred between the 1st day of January 1984 and the 15th day of May 1984, so the dates alleged in the indictment were not an essential averment. This court has held that an "indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the ... period of limitation, including the date[s] alleged, and the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period." Grantham v. State, 117 Ga.App. 444 (1), 160 S.E.2d 676 (1968). Thus, the evidence did not fall within the ambit of Rule 31.1 relating to notice of the State's intention to present evidence of a similar transaction. Rather, it was evidence of the offense charged and admissible under our holding in Grantham, supra. Hence, it was not error to deny appellant's motion in limine.
2. a. Appellant contends the trial court erred by giving the Allen charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) after the jury had deliberated only two hours and fifty minutes. The record reflects that after deliberating for the period stated the jury informed the trial court that it had not reached a verdict, and the trial court then gave the Allen charge. Appellant's contention that the charge was premature because the jury had deliberated less than three hours has been decided adversely to him by this court. Thornton v. State, 145 Ga.App. 793, 794, 245 S.E.2d 22 (1978); Banks v. State, 169 Ga.App. 571, 572(2), 314 S.E.2d 235 (1984). Whether to give the Allen charge to a jury in disagreement is left to the discretion of the judge, id., and we find no abuse of discretion here.
b. Appellant contends error in the trial court's reference to a religious deity in its charge to the jury. In the portion of the charge objected to the court stated: Appellant contends that this reference to God improperly inflamed the passion of the jurors prior to their deliberations, thereby denying appellant his right to a fair and impartial jury.
Appellant cites no authority supporting this contention, and we find nothing in the court's charge which invokes a deity or injects religion into the case. The oath referred to in the charge is required by statute in criminal cases, OCGA § 15-12-139, and ends with the phrase "[s]o help you God." Thus, the trial court was merely informing...
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Miller v. State
...limitation, including the date alleged." 2 Grantham v. State, 117 Ga.App. 444(1), 160 S.E.2d 676 (1968); see also Pittman v. State, 179 Ga.App. 760(1), 348 S.E.2d 107 (1986). "[T]he State is not confined to proof of a single transaction, but may prove or attempt to prove any number of trans......
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Evans v. State, s. 73911
...charge 4 to the jury on the second day of their deliberations and after six and one-half hours of deliberation. Pittman v. State, 179 Ga.App. 760(2a), 348 S.E.2d 107 (1986); Benton v. State, 178 Ga.App. 239(5), 342 S.E.2d 722 (1986). CASE NO. 73912. 6. Defendant Joiner's sole enumeration of......
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Jones v. State
...did not invoke a deity or inject religion into the case, and we find no merit to Jones's contention of error. See Pittman v. State, 179 Ga.App. 760(2b), 348 S.E.2d 107 (1986). Judgment All the Justices concur, except FLETCHER, P.J., SEARS and HINES, JJ., who concur specially, and FLETCHER, ......
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Nolton v. State, A90A0807
...plea, operates as a bar to further prosecution for any offense of the nature charged within the period. (Cit.) Pittman v. State, 179 Ga.App. 760(1) (348 SE2d 107) (1986). The dates alleged in [defendant's] indictment were not an essential averment thereof. The ... prior similar [transaction......