Johnson v. State

252 S.E.2d 205, 148 Ga. App. 702, 1979 Ga. App. LEXIS 1619

• Court: Court of Appeals of Georgia
• Decided: January 15, 1979
• Docket: 56929
• Status: Published

Opinions

Quillian, Presiding Judge.

The defendant appeals his conviction for burglary. Held:

1. It is alleged that the trial court erred in permitting the state to "indirectly put the accused’s character into evidence.” On cross examination of the accused, the state asked: "Q. Mr. Johnson, you still maintain you’re wholly innocent; is that right? A. That’s right. Q. Now, we took a luncheon break a few minutes ago. You tried to escape from the deputy sheriff downstairs, didn’t you? ... A. Yes, I did make an attempt.” Counsel objected and made a motion for a mistrial. The objection was not sustained and the motion was denied. We find no error.

Flight is always a circumstance which may be shown and a jury is authorized to take into account in determining guilt or innocence of an accused. Richardson v. State, 113 Ga. App. 163 (2) (147 SE2d 653); Woodruff v. State, 233 Ga. 840, 842 (213 SE2d 689). "[I]t is not necessary that the flight take place immediately.” McKuhen v. State, 216 Ga. 172 (3) (115 SE2d 330). Fifteen to twenty minutes after the alleged crime is relevant. Sullivan v. State, 222 Ga. 691, 693 (152 SE2d 382). Nor is such evidence barred when the person flees after becoming a suspect. McKuhen v. State, supra. Evidence of flight is admissible when it occurs one month after the crime (Fulford v. State, 221 Ga. 257 (2) (144 SE2d 370)) or two and one-half months later (Welborn v. State, 236 Ga. 319 (1) (223 SE2d 698)). Evidence that an accused fled when seeing a police officer who he thought might want to arrest him is admissible. Green v. State, 127 Ga. App. (194 SE2d 678). Where a suspect escapes from jail, such evidence is admissible as tending to establish his guilt. Carver v. State, 137 Ga. App. 240, 242 (223 SE2d 275); Welborn v. State, supra. Further, evidence that the defendant forfeited his appearance bond is admissible as tending to show flight. Jones v. State, 26 Ga. App. 635 (3) (107 SE 166); Strickland v. State, 137 Ga. App. 628 (1) (224 SE2d 809). Thus, we have found evidence of flight admissible whether it occurs at the time of the incident, shortly thereafter, when he becomes a suspect, when he thinks he is about to be arrested, and after he has been placed in jail, and even for failing to show up at the time of trial and forfeiting his appearance bond. Is it permissible to go one step further and show that the accused attempted to escape during the trial? We find that it is.

"Where there is some evidence from which the guilt of one accused of crime can be legitimately inferred, it is entirely within the province of the jury to draw that inference.” Wheeler v. State, 18 Ga. App. 15 (5) (88 SE 712). "When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them.” Harris v. State, 142 Ga. App. 37, 41 (234 SE2d 798); Ball v. State, 145 Ga. App. 254 (243 SE2d 672). " 'Any evidence is relevant which logically tends to prove or disprove a material fact... and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.’ ” Toole v. State, 146 Ga. App. 305 (7) (246 SE2d 338). "[W]here the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury.” Lovejoy v. Tidwell, 212 Ga. 750, 751 (95 SE2d 784); Guy v. State, 138 Ga. App. 11 (2) (225 SE2d 492). The court did not err in permitting evidence of the accused’s attempt to escape from custody during the trial.

2. The trial court charged the jury correctly on the rule of reasonable doubt and concluded: "I charge you, however, that the State is not required to prove a defendant’s guilt beyond a reasonable doubt or to a mathematical certainty . . .” (Emphasis supplied.)

Submitted November 7, 1978 Decided January 15, 1979. Lawson & Washington, A. Michael Washington, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Jesse L. Echols, Assistant District Attorneys, for appellee.

"Inaccuracies in a charge which do not mislead or obscure meaning, do not require a new trial.” Cauley v. State, 137 Ga. App. 814, 816 (224 SE2d 794). However, this is not just an inaccurate charge. The court gave two conflicting charges. We have no way of knowing which one the jury chose to follow. " '[T]he court should not give conflicting rules of law in charge and leave the jury to choose between them; where an erroneous statement is made it is not cured by a correct statement in another portion of the charge unless the jury’s attention is called to the correction by a retraction of the erroneous statement or in some other like manner.’ ” Cameron v. State, 123 Ga. App. 282, 283 (180 SE2d 554). There was no correction or retraction of the incorrect charge.

We are aware of the rule of Leonard v. State, 146 Ga. App. 439, 444 (246 SE2d 450), which was also written by the author of this opinion, but under the different facts of that case we found harmless error. We are unable to do so in the instant case when the principal theory relied upon by the defendant was that the evidence left a doubt as to his guilt. If the incorrect charge did not actually deny him this defense, it may well have misled or confused one or more of the jurors as to which standard to apply to the evidence. We cannot presume the error was harmless. See Walker v. State, 146 Ga. App. 237 (2) (246 SE2d 206).

Judgment reversed.

Bell, C. J., Webb, Smith, Shulman and Birdsong, JJ., concur. Deen, P. J., McMurray and Banke, JJ., concur in part and dissent in part.