Sims v. State
| Decision Date | 17 April 1975 |
| Docket Number | No. 29675,29675 |
| Citation | 234 Ga. 177,214 S.E.2d 902 |
| Parties | Richard SIMS v. The STATE. |
| Court | Georgia Supreme Court |
McHaney & Lynn, Robert L. McHaney, Jr., Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Carole E. Wall, don Frost, Asst. Dist. Attys., Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Deputy Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
Sims was convicted by a jury of murder and robbery, and appeals. The State's evidence tended to show that Sims deliberately unbuckled or unsnapped the strap securing the revolver of a security guard standing at a bus stop, stole the gun, ran to a waiting automobile and drove away with two companions one of whom was the driver; and that farther down the street Sims shot and killed an unarmed pursuer who had succeeded in persuading the driver to stop and who was speaking to the occupants of the car, including Sims, as he was shot. In his defense, Sims gave sworn testimony that he and another were playfully shadowboxing on the street while waiting for a friend to drive around the block to pick them up; that Sims stumbled into the security guard whose gun was loosened by the impact and fell to the street; that the guard uttered threats causing Sims to fear for his life; that consequently Sims grabbed the gun from the street and fled with it to his friend's car; that the pursuer who stopped the car was thought by Sims and his two companions to be a detective; and that he knew the man was shot, although he was vague about whether he did the shooting, testifying that 'If I did it, I didn't know nothing about it.'
1. The evidence was sufficient to authorize the jury's verdict of guilty as charged. Without deciding whether the witness Zachary was or was not an accomplice within the meaning of Code § 38-121 requiring corroboration, we rule that even if he was, the State's evidence provided sufficient corroboration of his testimony to convict Sims.
2. Sims contends that the trial court erred in failing to instruct the jury on the theory of self-defense. 1 After charging the jury, the court asked counsel for appellant and appellee if they had any objections to the charge. Counsel for appellant raised the question of whether a charge on voluntary manslaughter should have been given. When the court asked him if he had any other objections, counsel replied, 'That's all.' The state takes the position that the appellant thus waived any right he might have to object to the failure of the court to charge the law of self-defense.
( a) Under the Appellate Practice Act of 1965 as amended (Ga.L.1965, p. 18, 1968, pp. 1072, 1978), an appellant in a criminal case may appeal and enumerateerror on an erroneous charge or on erroneous failure to charge without first raising the issue in the trial court. Spear v. State,230 Ga. 74, 195 S.E.2d 397. The benefits of this rule are not deemed waived by defendant even where his counsel states to the trial judge that he has no objection to the charge of the court.
( b) After a review of the transcript, we are of the opinion that there is no evidence to warrant a charge on justification under Code Ann. § 26-901.
3. The contention that the trial court erred in failing to charge the jury on the law of voluntary manslaughter is without merit for the reason that there is no evidence which would authorize the instruction.
4. Appellant contends that the court erred in sustaining the State's objection to defense counsel's questioning a witness concerning the witness' 'feelings as to persons of black skin.' Counsel waived any right to assert error because after the court's ruling he stated 'I'll drop it' and This enumeration is without merit.
Judgment affirmed.
All the Justices concur except HALL, J., who dissents to Division 2(a).
I dissent to the holding that there can be no express waiver on the part of a defendant's counsel with respect to an erroneous charge of the court or the failure to charge in a criminal case. The majority opinion is (1) demanding a perfect criminal trial respecting the charge of the court, (2) relieving counsel of all professional responsibility with respect to any objection to the charge, and (3) advancing the 'sporting theory' of justice by encouraging counsel to play fast and loose with the trial court.
Let us examine the historical background and the current status of legislative enactments on the subject. Prior to the adoption of the Appellate Practice Act of 1965 (Ga.L.1965, p. 18) it was the general rule that a motion for new trial was an essential prerequisite to the filing of a writ of error in the appellate courts of Georgia when the plaintiff in error complained of an erroneous charge or the failure to charge. See Georgia Procedure and Practice § 23-34 (1957 Edition). However, the applicant for a new trial could except to the charge or the failure of the court to charge and assign error thereon in his original motion or in an amendment thereto; and it was not necessary to call the attention of the trial judge to any error in the charge, or exception to the charge, or to any failure to charge, before the jury rendered its verdict. Ga.L.1937, p. 592. It is important to note that the impact of these provisions was that while the appealing party did not have to raise the objection prior to the verdict, he nevertheless had to raise it in the trial court as a prerequisite to the writ of error.
Both of the above provisions were repealed by the 1965 Act. Under that Act, a motion for new trial is no longer a condition precedent to an appeal except in the specific instances enumerated in the Act. Code Ann. § 6-702. The 1965 Act contained a provision for review of erroneous instructions regardless of whether objection was made, but the provision was limited to civil cases. Ga.L.1965, pp. 18, 31. (Code Ann. § 70-207(c)). In 1966, this section was made applicable to all cases. Ga.L.1966, pp. 493, 498. In 1968, the section was again superceded in its entirety 'making this section apply only to civil cases, and not criminal.' Ga.L.19...
To continue reading
Request your trial
-
Westbrook v. Zant
...to raise error on appeal, even where defense counsel tells the trial judge that he has no objections to the charge. Sims v. State, 234 Ga. 177, 214 S.E.2d 902 (1975). Georgia Code Ann. Sec. 5-5-24(a) states that "no party may complain of the giving or the failure to give an instruction to t......
-
Grace v. Hopper
...Ga. 467, 216 S.E.2d 326 (Decided May 20, 1975); Gaither v. State, 234 Ga. 465, 216 S.E.2d 324 (Decided May 20, 1975) and Sims v. State, 234 Ga. 177, 214 S.E.2d 902 (Decided April 17, 1975).2 A modern pattern charge on this issue is currently under preparation by the Committee on Pattern Jur......
-
Barrow v. State
...duty of requesting such charge at his trial, where as here it cannot be said the error was induced or was harmless. Sims v. State, 234 Ga. 177, 178, 214 S.E.2d 902 (1975) is not applicable here. Sims involved a charge on self-defense which is required when demanded by the evidence. Here the......
-
Thomas v. State, 30013
...State, 231 Ga. 395(1), 202 S.E.2d 43.' The foregoing question was certified on April 16, 1975. On April 17, this court decided Sims v. State, Ga. 214 S.E.2d 902, where in division 2(a) the majority held as follows: 'Under the Appellate Practice Act of 1965 as amended (Ga.L.1965; p. 18, 1968......