Price v. State

163 S.E.2d 243, 118 Ga. App. 207, 1968 Ga. App. LEXIS 1355

• Court: Court of Appeals of Georgia
• Decided: June 25, 1968
• Docket: 43747
• Status: Published

Opinions

Jordan, Presiding Judge.

Earl Price was indicted for the murder of Johnnie Mae Dupree, convicted of voluntary manslaughter and sentenced to 10 to 15 years. On appeal to this court (Price v. State, 108 Ga. App. 581 (133 SE2d 916)) we reversed on an erroneous charge of mutual combat. Price was again placed on trial for murder under the same indictment, resulting in his conviction of voluntary manslaughter and a sentence of 10 years. From such verdict and judgment, Price appealed to the Supreme Court of Georgia. The case was transferred to this court since “only questions as to the application of plain and unambiguous provisions of the Constitution” are involved. Price v. State, 224 Ga. 306 (161 SE2d 825). Held:

1. Enumerations of error 1 and 2 complain of the overruling of defendant’s special plea of autrefois acquit and the denial of his rights under the 5th and 14th Amendments to the Constitution of the United States in that he was placed in jeopardy of life and liberty more than once for the same offense. These contentions have been decided adversely to the defendant in the case of Brantley v. State, 132 Ga. 573 (64 SE 676, 22 LRA (NS) 959, 131 ASR 218, 16 AC 1203), affirmed in 217 U. S. 284 (30 SC 514, 54 LE 768), where it was said, “When a person has been indicted for murder and convicted of voluntary manlaughter, if he voluntarily seeks and obtains a new trial, he is subject to another trial generally for the offense charged in the indictment, and upon such trial he cannot successfully interpose a plea of former acquittal of the crime of murder, or former jeopardy in regard thereto.”

Submitted June 5, 1968 Decided June 25, 1968 Rehearing denied July 24, 1968

2. Enumerations of error 3, 4, and 5 relate to the general grounds and Enumeration number 6 to the charge of the court on voluntary manslaughter. These contentions were fully dealt with in Price v. State, 108 Ga. App. 581, supra, Division 5, and the result reached there is controlling on these issues since the evidence on the second trial was substantially the same as on the first trial.

3. Enumeration of error number 7 complains that portions of the testimony of the sheriff constituted conclusions and opinions as to how the homicide was committed. Since no objections were made to the testimony during the trial, this enumeration is without merit.

4. Enumeration of error number 8 contends that the court erred in denying the indigent defendant’s request for a copy of the transcript of the record. Upon the filing of the defendant’s notice of appeal in this case, a transcript of the record was filed with the trial court and transmitted to this court as provided by Code Ann. § 6-805 (e) without cost to the defendant. This transcript was available to defendant’s attorney for use in preparing his brief and in perfecting the appeal to this court, thus affording the defendant a full and adequate review without regard to his ability to pay. This situation is not within the ambit of such cases as Griffin v. Illinois, 351 U. S. 12 (76 SC 585, 100 LE 891, 55 ALR2d 1055) and Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U. S. 214 (78 SC 1061, 2 LE2d 1269), relied upon by the defendant.

Judgment affirmed.

Pannell and Deen, JJ., concur. Allyn M. Wallace, for appellant. Cohen Anderson, Solicitor General, for appellee.