Wells v. State, 47114
| Decision Date | 21 April 1972 |
| Docket Number | No. 47114,No. 1,47114,1 |
| Parties | Douglas WELLS v. The STATE |
| Court | Georgia Court of Appeals |
Richard D. Phillips, Ludowici, for appellant.
Syllabus Opinion by the Court.
Defendant Douglas Wells was indicted and convicted of the offenses of (1) possession of Lysergic Acid Diethylamide (LSD), and (2) distributing and selling Lysergic Acid Diethylamide (LSD) to one James Ailiff.
Defendant contends that the trial court committed reversible error in: 1. Charging the jury that where circumstantial evidence is relied upon to establish a fact, the evidence must be such as to reasonably establish the theory relied upon and to preponderate to that theory rather than to any other reasonable hypothesis. (Emphasis supplied.)
2. Charging the jury that each count of the indictment should be considered separately and irrespective of the other, and that the jury should find the defendant guilty of Count 1 if they found that he possessed the described drugs and that they should find him guilty of Count 2 if he distributed and sold the described drugs in that the charge authorized a conviction for both crimes although the charge of possession of the same drugs alleged to be sold was necessarily included in the latter charge when committed at the same time and place. 3. In failing to give in charge Code Ann. § 27-101.2 upon defendant's request therefor. 4, 5 and 6. Not passed on. 7. Overruling defendant's amended motion for new trial. Held:
1. In charging the jury, the trial court stated: 'Now when circumstantial evidence is relied upon to establish a fact, the evidence must be such as to reasonably establish the theory relied upon and to preponderate to that theory rather than any other reasonable hypothesis.' (Emphasis supplied.)
While the trial court went on to charge that the jury would not be authorized to convict on circumstantial evidence alone unless the proven facts excluded every other reasonable hypothesis or conclusion except that of the guilt of the accused, and in other portions of the charge made it clear that the jury must find beyond a reasonable doubt that the defendant was guilty, the charge, as given could tend to mislead the jury into convicting the defendant on the basis of a preponderance of the evidence.
'The jury cannot be expected to select one part of a charge to the exclusion of another, nor to determine whether one part cures a previous error, without having their attention specially called thereto, and being instructed accordingly.' Bryant v. State, 191 Ga. 686, 720, 13 S.E.2d 820, 841; Reece v. State, 210 Ga. 578(2a), 82 S.E.2d 10; Ayers v. State, 214 Ga. 156, 159(4), 103 S.E.2d 574. This rule has been applied in certain cases, not only where the correct charge was given after intervening instructions but where it immediately followed the incorrect charge. Bryant v. State, supra; Caison v. State, 171 Ga. 1, 7, 154 S.E. 337.
2. The trial court charged the jury, 'While there are two counts, each one should be considered separately, and you should reach your verdict as to each one, irrespective of the other, although you can use all of the evidence relative to each count in determining whether or not the defendant is guilty as to each offense.' The trial court went on to charge the jury specifically regarding the possession of LSD, the sale and distribution of LSD and stated that the jury could convict on either or both counts if they found defendant guilty beyond a reasonable doubt on such count.
Code Ann. § 26-506(a) provides: (Emphasis supplied.) The indictment shows that the two offenses allegedly took place on the same date. The evidence conclusively shows that defendant's arrest arose out of a single transaction. According to the State's witnesses only the drugs sold to the State's witness Ailiff were found to have been in the defendant's possession. Thus defendant's conviction of the offense of illegal selling and distributing LSD necessarily included the offense of possessing LSD and vice versa. While it was proper to indict for both offenses, try both offenses together, it was not proper under Code Ann. § 26-506(a) to convict on both counts of the indictment, and the trial court erred in so charging the jury.
3. The evidence showed that defendant was a high school student and that on the day in question James Ailiff, a fellow student, while in the hall at school, overheard defendant say that 'he had some acid.' Later Ailiff went up to the defendant in the school parking lot and asked defendant if he would sell him some LSD and...
To continue reading
Request your trial
-
Baxter v. State
...outcome of a football game; it folds up and ends when there is no gambling equipment provided by the 'house.' In Wells v. State, 126 Ga.App. 130, 132, 190 S.E.2d 106, 108, this court held that selling and distributing drugs included the offense of possession of drugs, using the following la......
-
Butler v. State
...jury's attention to its withdrawal, error results. Reece v. State, 210 Ga. 578, 579(2)(a), 82 S.E.2d 10 (1954); Wells v. State, 126 Ga.App. 130, 131(1), 190 S.E.2d 106 (1972). Such error cannot be held harmless in view of the fact that the evidence adduced at trial, while sufficient to supp......
-
Matter of Georgia Steel, Inc.
... ... to Defendant as a materialman to a subcontractor under the Mechanic's Lien Laws in the State of Georgia ... " and on Mr. Burke L. Slocumb, Jr.'s personal guaranty. Mr. Hunt also wrote that ... ...
-
Boggus v. State, 51009
...hypothesis.' (Emphasis supplied.) Both this court and the Supreme Court have agreed that this charge is erroneous. Wells v. State, 126 Ga.App. 130(1), 190 S.E.2d 106; Pless v. State, 231 Ga. 228(1), 200 S.E.2d 897; Woods v. State, 233 Ga. 495, 212 S.E.2d 322. The only disagreement between t......