Burley v. State

Court of Appeals of Georgia

Burley v. State

332 S.E.2d 49, 174 Ga. App. 612, 1985 Ga. App. LEXIS 1899

CourtCourt of Appeals of Georgia

DecidedApril 19, 1985

Docket70250

StatusPublished

This text of 332 S.E.2d 49 (Burley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burley v. State, 332 S.E.2d 49, 174 Ga. App. 612, 1985 Ga. App. LEXIS 1899 (Ga. Ct. App. 1985).

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Opinion

Banke, Chief Judge.

The appellant was convicted of aggravated assault based on evidence that he walked into the victim’s restaurant armed with a shot[613]*613gun and shot the victim in the stomach. He appeals. Held:

Decided April 19, 1985. Elaine M. Gordon, for appellant. Robert E. Wilson, District Attorney, Susan Brooks, Thomas S. Clegg, Assistant District Attorneys, for appellee.

1. The trial court did not err in giving the so-called “Allen charge,” even though the jurors had been deliberating for only a little more than two hours and had not communicated to the court that they were deadlocked. Accord Goldwire v. State, 128 Ga. App. 472 (2) (197 SE2d 155) (1973); Harris v. State, 142 Ga. App. 37 (1) (234 SE2d 798) (1977); Powers v. State, 168 Ga. App. 642 (6) (310 SE2d 260) (1983). See generally Ponder v. State, 229 Ga. 720 (2) (194 SE2d 78) (1972). Furthermore, we find no impropriety either in the court’s prefatory remarks to the jurors to the effect that because they had never served on a jury before they might be confused as to their responsibilities or in the court’s statement that their responsibility was either to find the appellant guilty or innocent. There was no requirement that the court mention as a third option the possibility of a deadlock resulting in mistrial. See Russell v. State, 147 Ga. App. 194 (1) (248 SE2d 229) (1978).

2. The appellant contends that, through inflection of voice during compliance with the jury’s request for recharge on the definitions of aggravated assault and intent, the court improperly expressed the opinion that the appellant was guilty. We are, of course, limited to consideration of the written transcript; and the written transcript reveals no indication whatsoever that the court intimated such an opinion while the jury was present. Consequently, this enumeration of error is also without merit. Accord Clenney v. State, 229 Ga. 561 (1) (192 SE2d 907) (1972).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

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Banke, Chief Judge.

The appellant was convicted of aggravated assault based on evidence that he walked into the victim’s restaurant armed with a shot[613]*613gun and shot the victim in the stomach. He appeals. Held:

Decided April 19, 1985. Elaine M. Gordon, for appellant. Robert E. Wilson, District Attorney, Susan Brooks, Thomas S. Clegg, Assistant District Attorneys, for appellee.

1. The trial court did not err in giving the so-called “Allen charge,” even though the jurors had been deliberating for only a little more than two hours and had not communicated to the court that they were deadlocked. Accord Goldwire v. State, 128 Ga. App. 472 (2) (197 SE2d 155) (1973); Harris v. State, 142 Ga. App. 37 (1) (234 SE2d 798) (1977); Powers v. State, 168 Ga. App. 642 (6) (310 SE2d 260) (1983). See generally Ponder v. State, 229 Ga. 720 (2) (194 SE2d 78) (1972). Furthermore, we find no impropriety either in the court’s prefatory remarks to the jurors to the effect that because they had never served on a jury before they might be confused as to their responsibilities or in the court’s statement that their responsibility was either to find the appellant guilty or innocent. There was no requirement that the court mention as a third option the possibility of a deadlock resulting in mistrial. See Russell v. State, 147 Ga. App. 194 (1) (248 SE2d 229) (1978).

2. The appellant contends that, through inflection of voice during compliance with the jury’s request for recharge on the definitions of aggravated assault and intent, the court improperly expressed the opinion that the appellant was guilty. We are, of course, limited to consideration of the written transcript; and the written transcript reveals no indication whatsoever that the court intimated such an opinion while the jury was present. Consequently, this enumeration of error is also without merit. Accord Clenney v. State, 229 Ga. 561 (1) (192 SE2d 907) (1972).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

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332 S.E.2d 49, 174 Ga. App. 612, 1985 Ga. App. LEXIS 1899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burley-v-state-gactapp-1985.

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