Scott v. State
| Citation | 174 S.E.2d 243,121 Ga.App. 458 |
| Decision Date | 20 March 1970 |
| Docket Number | No. 45161,No. 3,45161,3 |
| Parties | Harry SCOTT v. The STATE |
| Court | United States Court of Appeals (Georgia) |
Hendon & Henley, E. T. Hendon, Jr., J. Wayne Moulton, Decatur, for appellant.
H. Eugene Brown, Dist. Atty., Jonesboro, for appellee.
Syllabus Opinion by the Court
The appellant was indicted, tried and convicted of the offense of assault with intent to murder. He was sentenced to serve a term of ten years in the penitentiary, with the last four years of said sentence to be probated. A motion for new trial was filed but was dismissed for want of prosecution. Thereafter, notice of appeal from the judgment of conviction and sentence was filed, and extensions of time for preparation of the record were obtained. Errors are enumerated on the denial of a written plea in abatement to the indictment, on the court's refusal to charge several written requests, and on the dismissal of his motion for new trial. Held:
1. There was evidence before the trial judge at a hearing of the plea in abatement from which it could be determined that the accused had employed counsel before indictment to reduce the bond which was reduced upon motion, and who represented the defendant at a committal hearing. Counsel stated in his place that he was not aware until he received a copy of the indictment that a Mr. Webb, who served on the grand jury, was a 'member of the Board of Education'. Under Code Ann. § 59-201 (Ga.L. 1953, Nov.Sess., pp. 284, 287) all citizens of this State being sui juris, who have resided in the county for six months preceding the time of serving, and who have been chosen as the most experienced, intelligent and upright persons, are qualified and liable to serve as grand jurors unless exempted by law. However, members of the county board of education are 'incompetent to serve as grand jurors during their respective terms of office'. Where a defendant is represented by counsel at the commitment hearing and where no challenge to the array of grand jurors is made until after the indictment, any contention that the grand jury is not properly constituted will be treated as having been waived. Hinton v. State, 223 Ga. 174(1), 154 S.E.2d 246; Blevins v. State, 220 Ga. 720(3), 141 S.E.2d 426; Wooten v. State, 224 Ga. 106(1), 160 S.E.2d 403. It is therefore held that the service of the incompetent grand juror here had been waived. The error complaining thereof is not meritorious. While counsel points out that in Reich v. State, 53 Ga. 73, 74, a special plea to an indictment is good if made on arraignment that 'one of the grand jurors who framed the indictment or special presentment was an alien and was not qualified to sit as a grand juryman,' this court is bound by the last and most recent fullbench decisions of the Supreme Court by seven Justices rather than a 3-judge decision of that court if it be indeed similar.
2. Error is enumerated on the definition of felony as given in the charge by the court as being a stronger meaning than that found in Code § 26-101, by reason of the fact that the court used the words 'would be punished' instead of 'shall be liable to be punished.' This is a distinction without a difference, and we do not think the charge as given by the court amounts to any harmful error to the accused in regard to this excerpt of the charge. Barnett v. Savannah Electric Co., 15 Ga.App. 270, 274, 82 S.E. 910; Scarborough v. Walton, 36 Ga.App. 428, 136 S.E. 830. A reading of Freeman v. State, 1 Ga.App. 276, 57 S.E. 924; and Smith v. State, 215 Ga. 51(1), 108 S.E.2d 688 fails to show where these two cases would be controlling on the question here raised. The error enumerated on this charge is not meritorious.
3. The request to charge was, in substance, based upon a shifting of the burden of proof upon the defendant to show justification or mitigating facts, in that he admitted shooting the injured person with a pistol, and that the court failed to instruct the jury as to quantum of proof required by the defendant to sustain his defense of justification. We feel the charge as given was sufficient, without instructing the jury that the burden of proof shifted to the accused since the charge as given was more favorable to him. Carnes v. State, 115 Ga.App. 387(6), 154 S.E.2d 781. Examination of the cases of Smith v. State, 203 Ga. 317(4), 46 S.E.2d 583; Ogletree v. State, 209 Ga. 413(3), 73 S.E.2d 201; Jackson v. State, 213 Ga. 275(3), 98 S.E.2d 571 and Satterfield v. State, 68 Ga.App. 7, 21 S.E.2d 861 are not authority for reversal on this point, although they virtually approve the charge requested. The charge as given was not erroneous, and no error is shown by the court refusing to give the written request to charge in this instance.
4. In a written request as to the fears of a...
To continue reading
Request your trial
-
Tingle v. Arnold, Cate and Allen
... ... The complaint contends the defendant lawyers to have breached 'their duties as attorneys at law and as officers of the courts of this state", to refrain from soliciting and instituting, for personal gain, litigation against plaintiff on behalf of an incompetent person, all in violation of \xC2" ... ...
-
Hamby v. State, 34555
...the array is therefore waived. Nor can this objection be raised by a plea in abatement under these circumstances. Scott v. State, 121 Ga.App. 458(1), 174 S.E.2d 243 (1970). 2. The appellant contends that the trial court erred in denying his notice to produce prior, written, allegedly incons......
-
Sullivan v. State, 36541
...v. State, 239 Ga. 734(1), 238 S.E.2d 888 (1977); Hamby v. State, 243 Ga. 339, supra, p. 340(1), 253 S.E.2d 759, citing Scott v. State, 121 Ga.App. 458(1), 174 S.E.2d (1970). Furthermore, it does not appear that the challenge could not have been made at the calendar call, regardless of wheth......
-
Mimms v. State
...court did not err in dismissing Mimms' motion. See Dunn v. State, 172 Ga.App. 146(1), 322 S.E.2d 349 (1984); Scott v. State, 121 Ga.App. 458, 461(6), 174 S.E.2d 243 (1970); Moody v. State, 14 Ga.App. 523, 526(2), 81 S.E. 588 (1914). Moreover, Mimms has failed to assert how she has been inju......