Walker v. State

• Decision Date: 21 April 1976
• Docket Number: No. 2,No. 52062,52062,2
• Citation: 226 S.E.2d 274,138 Ga.App. 422
• Parties: C. J. WALKER v. The STATE
• Court: Georgia Court of Appeals

Page 274

226 S.E.2d 274

138 Ga.App. 422

C. J. WALKER v. The STATE.

No. 52062.

Court of Appeals of Georgia, Division No. 2.

April 21, 1976.

Robert L. Ridley, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Donald G. Frost, Donald J. Stein, Asst. Dist. Attys., Atlanta, for appellee.

EVANS, Judge.

Defendant was indicted and convicted for the unlawful possession of marijuana, a controlled substance. He was sentenced to serve a term of two years. Motion for new trial was filed and, as amended, denied. Defendant appeals. Held:

1. Defense counsel, having just completed a murder trial, moved for continuance or a continuance for 'further-notice' because he was physically and mentally exhausted from the murder trial. This was on July 2, 1975, and the July 4th holiday was on Friday. The court did postpone the trial after striking the jury on the 2nd to the 3rd of July. The case of Brown v. State, 134 Ga.App. 771, 216 S.E.2d 356, does not apply, for the court did continue the matter over night after the end of the murder trial in which the defense counsel was involved and a guilty verdict rendered; and in the morning no other reason was shown why defense counsel could not proceed with the trial of the case. There is no merit in this complaint. No abuse of discretion has been shown. See in this connection such cases as Huckaby v. State, 127 Ga.App. 439(1), 194 S.E.2d 119; Reid v. State, 129 Ga.App. 41(1), 198 S.E.2d 358; Dutton v. State, 228 Ga. 850(2), 188 S.E.2d 794.

2. The second enumeration of error was that defendant was unlawfully arrested without probable cause, but this issue was not raised during the trial and has been made for the first time in the appellate court; hence, we cannot consider it. See Sanders v. State, 134 Ga.App. 825, 826, 216 S.E.2d 371; Jett v. State, 136 Ga.App. 559, 560(1), 222 S.E.2d 54; Butler v. State, 127 Ga.App. 539(1), 194 S.E.2d 261. However, even if the point had been properly made, the police officer saw the defendant had something in a bag which he surreptitiously left in a woodpile at a restaurant. Upon further investigation, numerous manila envelopes containing suspected marijuana were found in said sack. This enumeration is not meritorious. See Kendricks v. State, 231 Ga. 670, 203 S.E.2d 859; Taylor v. State, 138 Ga.App. 95, 225 S.E.2d 508.

3. Defendant contends his character was put in issue when the assistant district attorney began examining him on cross examination as to why he was in this particular neighborhood. The object of all investigation is the discovery of the truth. The state, as the opposite party, was entitled to a thorough and sifting cross examination of the defendant. But further examination of this matter also shows that the defendant failed to object, and he is now estopped from raising this issue on appeal. See citations in Division 2 above. Also see Joyner v. State, 208 Ga. 435(2), 438, 67 S.E.2d 221; Spencer v. State, 231 Ga. 705, 707, 203 S.E.2d 856; Mitchell v. State, 136 Ga.App. 390, 221 S.E.2d 465.

4. Defendant next contends that the state failed to prove that more than 1 ounce of marijuana was found. But in the examination of the expert who identified the substance as marijuana, he positively testified that there was more than one ounce, that is, '2.73 ounces.' There is no merit in this complaint.

5. Under the circumstances, it was not necessary for the trial court to charge the jury that in the event they found it was less than an ounce of marijuana, defendant would be guilty only of a misdemeanor. The trial judge should charge with or without request as to the general principles of law which of necessity must be applied in reaching a correct verdict on the issue. Tift v. State, 133 Ga.App. 455, 457, 211 S.E.2d 409; Foskey v. State, 126 Ga.App. 268, 190 S.E.2d 556. Nevertheless, it was not necessary in this instance to charge that the jury should determine whether or not than one ounce of marijuana was present.

6. The defendant was seen hiding a plastic container in a woodpile. Upon investigation, the police officers found the suspected marijuana. This was sufficient proof that the defendant had possession of the marijuana. Taylor v. State, 138 Ga.App. 95, 225 S.E.2d 508, supra.

7. The jury returned a verdict of guilty. Before it was released the foreman requested that he be allowed to ask a question. The court then discharged the jury and allowed this juror to ask his question which was one of curiosity as to whether or not the defendant had a history of prior conviction. Whereupon the court instructed him 'that is not involved in your determination.' Whereupon the foreman answered 'no, it had nothing to do with that because we knew that.' The answer here is vague and might be interpreted to mean that the jury knew that had nothing to do with their determination of guilt or innocence; or he might have meant that they knew of some prior criminal record of the defendant. But defense counsel made no motion with respect to not allowing the verdict to be received and entered, and a jury cannot impeach its own verdict. See Code § 110-109; Bowden v. State, 126 Ga. 578(1), 55 S.E. 499; Fields v. Balkcom, 211 Ga. 797, 798, 89 S.E.2d 189. The record itself does not show any error,...