Sparks v. State
| Decision Date | 05 February 1970 |
| Docket Number | No. 2,No. 44814,44814,2 |
| Citation | 121 Ga.App. 115,173 S.E.2d 239 |
| Parties | Jodie D. SPARKS v. The STATE |
| Court | Georgia Court of Appeals |
Howe & Murphy, D. B. Howe, Harold L. Murphy, Tallapoosa, for appellant.
Wayne W. Gammon, Solicitor, Cedartown, for appellee.
Syllabus Opinion by the Court
This is an appeal from a conviction and sentence for the misdemeanor offense of drag racing on a public highway (see Code Ann. § 68-1626(e)-(h)) and the overruling of a motion for new trial. Held:
1. There is no merit in the contention that the court erred in instructing the jury concerning the evidence of good character and its significance. The accused introduced evidence of his good character generally, which is unrebutted, and the record and transcript fails to disclose any specific request for instructions on the effect of character evidence in advance of the giving of instructions. The court instructed the jury verbatim the provisions of Code § 38-202, stated that the accused had offered evidence of his good character, and followed this by instructions See Keys v. State, 112 Ga. 392(5), 37 S.E. 762; Jones v. State, 130 Ga. 274(12), 60 S.E. 840; Taylor v. State, 83 Ga.App. 735(3), 64 S.E.2d 598.
2. There is also no merit in the contention that the court erred in failing to instruct the jury on the penalties which the judge could impose in the event of conviction of the misdemeanor offense charged. It was the sole duty of the jury to determine the guilt or innocence of the accused without regard to or knowledge of the possible consequences.
3. It is further contended that the court erred in failing to sequester a witness, Sergeant Abernathy, and in allowing him to remain in the courtroom during the trial of the case. We do not think so.
This member of the Georgia State Patrol was the prosecutor of record, having sworn to the accusation. At the outset of the trial the accused invoked the rule (Code § 38-1703) and objected to Sergeant Abernathy's presence in the courtroom as a prosecutor or as a witness, unless he testified first. This objection was overruled, and his companion, another member of the patrol, testified first.
Among other cases, the accused relies on Massey v. State, 220 Ga. 883, 142 S.E.2d 832, where the Supreme Court stated (p. 895, 142 S.E.2d at 840) that even if a victim be accorded the status of a prosecutrix, 'she would not have been entitled to remain in the courtroom and hear all the testimony of the other State's witnesses before she testified,' and held that it was harmful error requiring the grant of a new trial to refuse to apply the rule to her, no reason appearing to apply an exception.
Nevertheless, in a more recent decision, Roach v. State, 221 Ga. 783(7), 147 S.E.2d 299, in which the accused invoked the rule of sequestration, the Supreme Court upheld the action of the trial court in allowing the prosecutrix to remain in the courtroom at the request of the State's attorney,...
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