Wright v. State

148 S.E.2d 333, 113 Ga. App. 436, 1966 Ga. App. LEXIS 1087

• Court: Court of Appeals of Georgia
• Decided: March 18, 1966
• Docket: 41879
• Status: Published

Opinions

Nichols, Presiding Judge.

“On a trial of an indictment for arson, it is not error to admit evidence showing that feelings of anger or dislike existed on the part of the defendant toward the owner of the property.” Hammack v. State, 52 Ga. 397 (1). At the time the above case was decided the language now contained in Code § 38-202 appeared in § 3757 of the Code of 1873, and such case stands as an exception to the rule announced in Bacon v. State, 209 Ga. 261, 263 (71 SE2d 615), excluding evidence of other crimes “unless there is some logical connection between the two.” The evidence objected to in the case sub judice was of actions and words of the defendant toward the property owner and therefore admissible to show the “feelings” of the defendant toward such property owner.

In instructing the defendant as to his right to make an unsworn statement the trial court included the following: “You are not under oath, and in the absence of your objection, you may be cross examined by the solicitor general, but you shall not be compelled to answer any question on cross examination should you think proper to decline an answer.”

Under the decision in Gibbs v. State, 112 Ga. App. 272 (2) (145 SE2d 43); such instruction to the defendant was error requiring a new trial, and under the decision of the Supreme Court in Watkins v. State, 199 Ga. 81, 87 (33 SE2d 325), it is not necessary, as the State contends, for the defendant to have objected to such instruction before verdict in order to have the question properly before this court. An examination of the record in the Watkins case, supra, discloses that no objection was made to the instructions to the prisoner there complained of until the amended motion for new trial was presented to the trial court.

The defendant contends that it was error for the trial court to fail to charge Code § 26-2205 even in the absence of a timely request. This Code section is as follows: “Arson in the daytime (except in a city, town, or village) shall be punished by a shorter period of imprisonment and labor than arson committed in the night.” The contention of the defendant is that the burning did not take place at night or in a city, town, or village and that therefore it was error to fail to give such charge.

In Brightwell v. State, 41 Ga. 482, it was recognized that such law was not a part of the crime but was an aid in fixing the sentence. Accordingly, it would be proper to charge such Code section in any arson case, but was the defendant harmed by the failure of the trial’ court to so charge the jury in the case sub judice? It is his contention that the fire here occurred in the daytime and not in a city, town, or village. Even assuming that the fire occurred in the daytime it did not occur outside a city, town, or village. In 1872 (Ga. L. 1872, p. 16), the General Assembly provided for the incorporation of “unincorporated towns and villages” by the superior courts. Thus, “village” may or may not include an incorporated municipality. See also as to the definition of a village: Black’s- Law Dictionary, (4th Ed.) p. 1740; 92 CJS 1011. ■ “The term ‘village’ is frequently used in a popular sense to describe an assemblage of houses less than, a town or city but nevertheless urban or semiurban in character without regard to whether it is incorporated. It is frequently used'in this sense in statutes.” 37 Am. Jur. 623, Municipal Corporations, § 5. Accordingly, a proper interpretation of the word “village” in Code § 26-2205 would appear to be “an assemblage of dwellings or storehouses or combinations of both located in close proximity where the burning of one would endanger the others to possible destruction by fire,” and under such definition a trailer park where numerous “house-trailers” are parked on individually marked lots and used as dwellings, although located outside any incorporated municipality, would be a “village” as referred to in the above cited Code section.

Therefore, while the failure to charge the provision of such Code section may have been error it was harmless error to the defendant since under the evidence the burning did not take place in an area where the shorter period of imprisonment would apply.

Inasmuch as the case must be tried again and the evidence may not be the same on another trial, the usual general grounds of the motion for new trial and the enumerations of error raising the same contention will not be passed upon, and the remaining ground which complains of an excerpt from the charge which the trial court immediately withdrew from the jury’s consideration will not likely recur on another trial.

Judgment reversed.

Deen, J., concurs. Hall, J., concurs specially.