Sanford v. State

• Citation: 199 S.E.2d 560,129 Ga.App. 337
• Decision Date: 29 June 1973
• Docket Number: 2,3,Nos. 1,No. 48062,48062,s. 1
• Parties: Hollis SANFORD v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 560

199 S.E.2d 560

129 Ga.App. 337

Hollis SANFORD v. The STATE.

No. 48062.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

June 29, 1973.

John Thomas Chason, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carter Goode, James H. Mobley, Jr., Morris H. Rosenberg, Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Presiding Judge.

The defendant appeals from his conviction for the offense of burglary.

1. The defendant's contention that the court erred in charging as to the meaning of reasonable doubt is without merit. The identical charge was approved in Deering v. State, 123 Ga.App. 223(3), 180 S.E.2d 245 and Bruster v. State, 228 Ga. 651(2), 187 S.E.2d 297.

2. Defendant also contends that the court erred in charging 'and you further find beyond a reasonable doubt that recently after the commission of the offense the stolen goods were found in the possession of the defendant, that fact would authorize the jury to infer the accused was guilty, unless he explains his possession to your satisfaction.' This charge was approved in Horton v. State, 228 Ga. 690, 691, 187 S.E.2d 677.

3. Defendant further contends that the following colloquy between the trial court and the jury foreman implies prejudice on the part of the trial judge and denies him the right to a fair trial: 'The jury has raised the question as to whether or not the jury could have made available to it any past record of the defendant regarding any previous offense of this nature. This we didn't know, sir.' After the judge had re-charged on reasonable doubt and recent possession but without referring to this portion of the foreman's request, the foreman stated: 'The one remaining question that one or two members of the jury raised is whether or not there was any prior record.' To this the judge answered: 'I cannot address you with regard to this in any way at this time.'

It is important for appellate judges to remember that 'A defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials.' Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593; Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476; Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208. The work of a trial judge in a criminal trial is not an easy one. His language in colloquies with counsel, witnesses or jurors should not be judged by the hindsight of appellate judges after weeks of academic deliberation but by the practical difficulties and circumstances faced by the trial judge at the time of the trial.

The transcript shows that the judge first tried to ignore that part of the foreman's request about whether or not the accused had a past record and charged on the other matters-reasonable doubt and recent possession. The foreman again said: 'The one remaining question that one or two members of the jury raised is whether or not there was any prior record.' To this the judge finally said: 'I cannot address you with regard to this in any way at this time.' This was a reasonable reply under the circumstances. He could not, at that time, reveal to the jury whether the defendant did or did not have a record. Our law so provides; he could do so later in the event of a conviction.

The defendant contends that this reply should be given an unfavorable inference, that the accused has a record but he could not tell them about it at that time. Another inference is just as logical-that the accused has no record but he could not tell them about it at that time. It is basic that after a verdict of guilty the appellate courts must draw every inference and presumption in favor of the verdict. Taylor v. State, 128 Ga.App. 13, 195 S.E.2d 294; Ryder v. State, 121 Ga.App. 796(3), 175 S.E.2d 882. It should also be noted that after the colloquy defendant's counsel commented about the charge on recent possession but made no objection or motion for mistrial as to the judge's answer to the foreman.

In our opinion the defendant received a fair trial.

Judgment affirmed.

BELL, C.J., EBERHARDT, P.J., and DEEN and STOLZ, JJ., concur.

PANNELL, J., concurs in the judgment.

QUILLIAN, EVANS and CLARK, JJ., dissent.

EVANS, Judge (dissenting).

I concur in all that is set forth in Judge Clark's very cogent and persuasive dissent, and I wish to add these lines. There can be no doubt that every one of the jurors, being intelligent human beings, fully understood the pointed and damaging statement by the trial judge. The juror wished to know if the defendant had a prior record, and Judge Tanksley, in the presence of all twelve jurors, stated: 'I cannot address you with regard to this in any way at this time.' (Emphasis supplied.) What intelligence did that transmit to the mind of each juror-that at some future time the judge could tell them that the defendant had no prior record? Assuredly not-they knew-as any sensible person would know-that the judge labored under some inhibition which prevented his telling the jury about the prior record of the defendant at this time.

But assume that half the jurors were paying little attention, or took this to mean that the defendant had no prior record; and assume the other half took the opposite view,-that the defendant did have a prior record-that is enough to pollute the pure stream which supposedly flows from the fountain of justice. The defendant has no burden of showing that each juror understood the language to mean he had a prior record, or that even one of these so understood it. All he has to show is that the language was such that one juror could have understood it to mean he had a prior record.

Could the trial court, can this court, can anybody say that not a single one of the jurors so understood the judge's message? Unless we can so state, then we are duty bound to grant the defendant a new trial. The defendant does not have to show that he was injured; he only has to show that he could have been injured by this very pointed and accusatory language.

It has been held that where the trial judge inadvertently uses language which could have injured the defendant, such requires a new trial as 'we have no way of telling how much influence it may have had on the jury in arriving at their verdict.' Nixon v. State, 14 Ga.App. 261, 263, 80 S.E. 513, 515. The same language citing Nixon is found in Moyers v. State, 58 Ga.App. 237, 240, 198 S.E. 283. It has also been held that even though the verdict arrived at is the one that ought to have been rendered, and the erroneous statement was wholly unintended by the judge, a reversal must be had 'whether in fact it was injurious to the party or not.' Central of Ga. Ry. Co. v. Augusta, Brokerage Co., 2 Ga.App. 511, 513, 58 S.E. 904, 905. And where a 'slip of the tongue' occurs, unless the true meaning is so palpable as to be clearly understood by the jury, a reversal is required. Plaspohl v. Altantic Coast Line Ry. Co., 87 Ga.App. 506(1), 74 S.E.2d 491.

For all of the foregoing, I am quite convinced that my esteemed colleagues of the majority are in serious error in affirming this unwarranted language by the trial judge in the presence of the jury, and I dissent.

CLARK, Judge (dissenting).

My disagreement with my brethren deals with the impact of the incident dealt with in the third division. I suggest that the inadvertent use of the words 'at this time' in reply to the direct query from the foreman concerning the possibility of the accused, having a previous criminal record was error in the context in which it occurred. Apparently the...