Whitten v. State

• Decision Date: 04 October 1977
• Docket Number: No. 54462,No. 2,54462,2
• Citation: 240 S.E.2d 107,143 Ga.App. 768
• Parties: Mark A. WHITTEN et al. v. The STATE
• Court: Georgia Court of Appeals

Page 107

240 S.E.2d 107

143 Ga.App. 768

Mark A. WHITTEN et al. v. The STATE.

No. 54462.

Court of Appeals of Georgia, Division No. 2.

Oct. 4, 1977.

Rehearing Denied Nov. 7, 1977.

Oehlert, Kermish, Labovitz, Marcus, Brazier & Rosenberg, Stephen A. Kermish, Chester G. Rosenberg, Atlanta, Cook & Palmour, A. Cecil Palmour, Summerville, for appellants.

W. Bryant Huff, Dist. Atty., P. Samuel Huff, Dawson Jackson, William P. Rowe, III, Asst. Dist. Attys., Lawrenceville, for appellee.

SHULMAN, Judge.

Appellants, husband and wife, seek reversal of their conviction for arson in the first degree. The evidence shows that the Sugar Hill Volunteer Fire Department responded to a fire at the residence of the appellants. Upon their arrival, the firemen found four separate fires burning. The fires were located in the carport area, the living room-den, a downstairs bedroom and the master bedroom upstairs. There was testimony that both bedrooms smelled strongly of gasoline. Clothing soaked in gasoline was found in a dresser in appellants' bedroom.

1. Three enumerations of error based on the admission of opinion testimony by two firemen and an arson investigator are not supported by argument or citation of authority. Under the provisions of Rule 18(c)(2) of the rules of this court, these enumerations are deemed abandoned. Code Ann. § 24-3618(c)(2). With regard to argument on these points in a supplemental brief, see Johnson v. Heifler, 141 Ga.App. 460(6), 233 S.E.2d 853.

2. Citing Shropshire v. State, 81 Ga. 589, 8 S.E. 450, and Birt v. State, 236 Ga. 815(5), 225 S.E.2d 248, appellants contend the trial court committed error in failing to charge, even without a request, that appellant Mark Whitten's good character could be considered in determining his guilt or innocence. The citation to Birt referred to the following statement therein: "In a criminal case it is the duty of the trial judge, with or without request, to give the jury appropriate instruction as to the law on each substantive point or issue involved in the case . . . " Id. at 828, 225 S.E.2d at 257. In Shropshire, the court held: "Good character is a substantive fact, like any other fact tending to establish the defendant's innocence, and ought to be so regarded by the court and jury." Shropshire v. State, supra, 81 Ga. at 591, 8 S.E. at 451.

Appellants have confused substantive facts with substantive issues or defenses. "While the good character of an accused person is a substantive fact, and evidence of such character should be weighed and considered by the jury in connection with all the other evidence in the case, still such good character of the accused is not a distinct substantive defense. A proper instruction should be given in every case where the accused puts his character in issue; but in the absence of a timely request, an omission to give a specific charge on the subject will not require a new trial. It is only in exceptional cases where the court fails to charge relatively to the good character of the accused that a new trial should be granted. Seymour v. State, 102 Ga. 803, 30 S.E. 263. This case falls within the general rule, and not within the exception." Scott v. State, 137 Ga. 337(3), 73 S.E. 575.

3. Again relying on the holding in Birt v. State, supra, that a charge must be given, even without request, on all substantive issues, appellants enumerate as error the trial court's failure to charge the jury on the weight and credit to be given the testimony of expert witnesses. They concede that Scudiere v. State, 130 Ga.App. 477(2), 203 S.E.2d 581, contains a holding contrary to their position, but assert, without citation of authority or any other support, that the testimony of certain witnesses rose to a substantive issue. We cannot agree. The substantive issues in this and other criminal cases are those which concern the guilt or innocence of the accused. The manner in which the jury should consider the testimony of witnesses is collateral to the main issues. The question raised by this enumeration is controlled adversely to appellants by Scudiere, supra.

4. During direct examination, appellant Mark Whitten testified that he had been dismissed from the Atlanta Police Department and began to explain why. The state objected to the testimony and argument was heard on the matter outside the presence of the jury. During the course of the discussion, the judge mentioned that he could instruct the jury to disregard the whole matter. Defense counsel was silent but the state's counsel indicated he would like to ask some questions on the subject since appellant had put it before the jury. The judge then agreed to allow testimony on the subject. Defense counsel proceeded to examine Whitten on the subject. There was no charge given the jury on how to consider the evidence relative to Whitten's dismissal. Appellants now claim that the judge misrepresented an intention to charge, preventing counsel from properly framing an argument to the jury. The record does not support appellants' assertion. The judge said at one point that he felt he should instruct the jury to...