Ramsey v. State

92 S.E.2d 866, 212 Ga. 381, 1956 Ga. LEXIS 378

• Court: Supreme Court of Georgia
• Decided: April 9, 1956
• Docket: 19259
• Status: Published

Opinions

Mobley, Justice.

The defendant was convicted of robbery by force and was sentenced to death. He filed a motion for new trial on the general grounds and five special grounds. The motion was denied, and he excepts to that judgment and to the overruling of his demurrer to the indictment.

1. The indictment, which charged that the accused “did . . . unlawfully and with force and arms, wrongfully, fraudulently, and violently, by force, take from the person of E. C. Rhodes, without his consent, and with intent to steal the same, one hundred fifty-one . . . dollars,” sufficiently charged the offense of robbery, the indictment being substantially in the language of Code § 26-2501 defining said offense. “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury.” Code § 27-701. In Lacey v. State, 44 Ga. App. 791 (3) (163 S. E. 292), which was a case of robbery by force and intimidation, the court held: “It was not necessary for the indictment to allege ‘how or in what manner the defendant employed force, or what constituted force and intimidation in the act alleged.’ ” The indictment in this case was in the language of the Code and was sufficiently plain for the nature of the offense to be easily understood by the jury, and this is sufficient. Pippin v. State, 205 Ga. 316 (4), 322 (53 S. E. 2d 482); Rutherford v. State, 183 Ga. 301 (1) (188 S. E. 442); Harris v. State, 191 Ga. 243 (6), 253 (12 S. E. 2d 64). There is no merit in the exception to the overruling of the demurrer to the indictment.

2. Ground 1 of the amended motion for new trial asserts that, after the defendant’s counsel finished his argument to the jury (in which he had argued the law of circumstantial evidence), the solicitor-general, who contended that the law of circumstantial evidence did not apply to the case, asked the court to rule on whether such law was applicable. The court replied, “I will get to that, Mr. Solicitor,” and immediately began his charge to the jury, completing the charge with this statement: “The solicitor-general has, asked for a ruling by the court as to a specific matter in this case, and that is with reference to circumstantial evidence. The court is not giving you as applicable to this case the rule of circumstantial evidence.” The defendant contends that the effect of this statement to the jury was to instruct them that all the evidence introduced in the case was direct evidence as distinguished from circumstantial evidence; and circumstantial evidence having been admitted into the case, it was incumbent upon the court to instruct the jury to consider only the direct evidence or else to charge the law of circumstantial evidence.

It is not error to fail to charge the law of circumstantial evidence in the absence of a request, when there is direct evidence in a case (Jones v. State, 210 Ga. 94 (7), 78 S. E. 2d 18; Wise v. State, 209 Ga. 115(1), 70 S. E. 2d 598; Green v. State, 210 Ga. 745 (2), 82 S. E. 2d 703); but when direct and circumstantial evidence is introduced in a criminal case, it is the better practice to charge the law contained in Code § 38-109. There was direct evidence in this case. The victim identified the defendant as the one who had made the attack upon him. The victim had been knocked unconscious and was not able to testify as to who took his wallet and money; but the defendant supplied this fact with a confession, and a confession is direct evidence. Richardson v. State, 207 Ga. 373 (1) (61 S. E. 2d 489); Downs v. State, 208 Ga. 619 (1) (68 S. E. 2d 568); Booker v. State, 210 Ga. 34 (2, 3) (77 S. E. 2d 505).

While it was not error for the trial judge to fail to charge on the law of circumstantial evidence, as there was no request for such charge, it was an entirely different matter for him to instruct the jury that “the court is not giving you as applicable to this case the rule of circumstantial evidence.” This amounted to an expression of opinion by the court that none of the evidence was circumstantial, or that the law of circumstantial evidence, which had been argued to the jury by the defendant’s counsel, was not applicable. There was circumstantial evidence offered by the State to secure a conviction in this ease, and the law of circumstantial evidence was applicable. Should the jury have rejected the defendant’s confession, then the only remaining evidence of the taking of the victim’s money was circumstantial. Under this charge, the juiy could have found that this circumstantial evidence satisfied their minds beyond a reasonable doubt of the guilt of the defendant, while they would not have been authorized under those circumstances to have convicted him unless that evidence excluded every reasonable hypothesis except the guilt of the defendant. Accordingly, it was error for the judge to instruct the jury that he would not give them as applicable to the case the rule of circumstantial evidence.

Argued March 12, 1956 Decided April 9, 1956 Rehearing denied May 16, 1956. Lavender & Griffith, for plaintiff in error. Carey Skelton, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, (William Hall, Carter Goode, on motion for rehearing), contra.

3. Special grounds 2, 3, and 4 each contains an excerpt from the charge of the court, and each assigns as error the failure of the court to charge in connection therewith some other principle of law. A correct charge of the court is not made erroneous by the failure to charge some other principle of law. These grounds are without merit. Green v. State, 150 Ga. 121 (1) (102 S. E. 813); Jester v. State, 193 Ga. 202 (2) (17 S. E. 2d 736); Napper v. State, 200 Ga. 626 (2) (38 S. E. 2d 269).

4. Ground 5 attacks the entire charge of the court as not correctly, completely, and adequately instructing the jury on the law of the case; and upon the further ground that the charge fails to include certain principles of law. While it would have been the better practice for the court to have charged fully on the .principles of law which are alleged to have been omitted, especially where, as here, the defendant was accused of a capital felony, the contention that the charge is incomplete and inadequate, without pointing out any errors in the charge as given, is too general to be considered by this court as an assignment of error (Franklin v. State, 69 Ga. 36 (11), 47 Am. R. 748); and the contention that the court failed to charge certain principles of law in connection with those principles which were charged is without merit for the reasons given in division 3 above.

5. There is no merit in the general grounds of the motion for new trial.

Judgment reversed.

All the Justices concur.