Russell v. State

248 S.E.2d 229, 147 Ga. App. 194, 1978 Ga. App. LEXIS 2846

• Court: Court of Appeals of Georgia
• Decided: September 12, 1978
• Docket: 56145
• Status: Published

Opinion

Shulman, Judge.

This appeal follows defendant’s conviction for aggravated assault. We affirm the judgment.

1. The trial court, in recharging the jury, gave the following instruction: "This case must be decided by some jury selected in the same manner that you were selected and there is no reason to think that a jury better qualified than you will ever be chosen.”

Appellant argues that this charge inaccurately states the law and unconstitutionally impairs the defendant’s right to a fair and impartial jury. We disagree.

The charge is not an incorrect statement of the law, because it fails to instruct that a jury could, through disagreement resulting in mistrial, not decide the case. A challenge to this charge on this same basis has been considered and rejected. Ratcliff v. Ratcliff, 219 Ga. 545 (134 SE2d 605). The constitutional question raised in this enumeration has also been considered and decided adversely to appellant. Spaulding v. State, 232 Ga. 411 (4) (207 SE2d 43).

Submitted June 26, 1978 Decided September 12, 1978. Richard M. Loftis, for appellant. M. Randall Peek, District Attorney, Jonathan C. Peters, Assistant District Attorney, for appellee.

2. Appellant contends that the trial court erred by inquiring into the numerical division of the jury. We disagree.

The record shows that the court specifically cautioned the foreman to give, and in fact the foreman only reported, the distribution without indicating the breakdown as to guilt or innocence. Accordingly, no prejudicial error requiring reversal is shown. Wilson v. State, 145 Ga. App. 315 (4b) (244 SE2d 355).

Judgment affirmed.

Bell, C. J., and Birdsong, J., concur.