*1 Finally, 4. the defendant argues the court applied improper criteria at his arriving sentence of years. eighteen The co-defendant received fifteеn years. The defendant maintains disparity between the two sentences because the the relied unexplained his intuition and the defendant’s move Columbus, from California to Georgia.
From co-defendant been never arrested before while defendant Jung (whose Valenzule) true name is James a carrying pistol and false identification when arrested and gave police false information as to his true name because he was wanted as a deserter from army. Only cross examinatiоn at trial did the defendant reluctantly reveal true identity.
The sentence imposed upon the defendant was (Farris State, (5) within the limitfixedby (1866)), and the court did not err in setting sentenсe. All the Justices concur. 9, 1976 1976.
Submitted March Walters, Jr., Scott District Attorney, William J.
Smith, Assistant District Attorney, General, Attorney for appellee.
31040. CAMPBELL v. THE STATE. Per Curiam.
Phillip Eugene Campbell appеals his conviction for armed robbery. For his co-defendant James Valenzule, alias Richard George Jung, Jung see (1976). 73Ga.
1. circumstances, Considering totality in-court identifiсation by of this defendant the victim was not rendered pre-trial inadmissible identification procedure. Heyward It fol- lows that the the verdict. supports victim at robbery Whеre a testifies one point her robbery occurred at home and testifies at another that her point home is a certain county, venue is shown. It for the state necessary prove that the victim did If home. is an more than one venue issue case, the victim may be cross examined this subject.
3. The shows that course of the trial the trial certain judge made remarks and inquiries evidence, ruling objections to counsel as questioning the purpose to of and as to questions evidence, to objections physical the admission of and in announcing objections that certain be would deemed to be continuing objections. We have examined the trаnscript find of violation 81-1104.
4. The charge of court as reconciling to conflicts not error. 287) (1976). SE2d All the concur. Justices
Argued May 10, 1976 Jones, Grogan, Lay & Swearingen, John C. field Jr., Swearingen, Attorney, District William J. Smith, Assistаnt District Attorney, Attorney General, Kohler, Harrison Assistant Attorney General, for appellee.
Hill, Justice, concurring.
I concur in the judgment of the court but wish to add my views on the of opinion. Divisiоn of
The trial court jury upon credibility of "Now, gentlemen, follows: ladies and credibility of the witnesses is a matter be to determined you under the instructions of the Court. You are the sole and the credibility exclusive of the witness- es and the that should weight witness- given es’ testimony. And in credibility of determining witnesses, you may consider all facts case, circumstances of this the witnesses’ manner of testifying, intelligence,1 their means their knowing opportunity the facts to which they have the facts to which testified, the nature of improbability probability of their testified, testimony, and also their interest or want of interest their may legitimate- credibility personal the same insofar as up- appеar you upon ly Now, trial of this case. gentlemen, evidence, ladies and on consideration appear between the to be a conflict there should your witnesses, then would become duty every can to reconcile that conflict so as to imputing speak truth and without
witness gentlemen, perjury ladies witness. in such irreconcilable conflict find of the evidence your it, become cannot thus resolve then would duty to believe that evidence and those witnesses whose most reasonable and most the trial is similar to the Judges one (criminal charges, form The defendant contends that *3 quoted the last sentence above constitutes reversible charges in the standard criminal use error. Because one of throughout attack, the state is under this matter becomes one of some concern. Knapp upon cases,
The defendant relies three (5th 1963); States, 316 F2d 794 Cir. Farmer v. and United States v. (5th 1973); Caldwell, F2d 22 Cir. (5th 1976). Knapp Holland, Holland, 526 F2d Cir. supra, appear upon to be bаsed the circuit court’s upon grounds. supervisory power and not constitutional supra,
Knapp v. United involved district put up court’s instructions. There the defense evidеnce. The court that witnesses are presumed urged to tell truth. The defendant charge because he had offered no evidence the effect ofthis was tо direct a verdict of guilty; i.e., to instruct the intelligence question of a witness is 1 I upon credibility of his indicator of the an subjects. nontechnical government’s presumed
thаt the witnesses are to tell the truth. The circuit court with defendant’s argument but declined to reverse his conviction because objected charge the defendаnt had not to the before the required by commenced its deliberations as Rule F. R. Crim. P. Georgia unfortunately rule, the federal charge,
allows the defendant to listen to the court’s objection, hope complain acquittal, no charge appeal, get successful a second trial at (a). public expense. § my 70-207 view the exclusion of criminal cases from Code Ann. 70-207 has depriving judges effect of trial of the adversarial presentation questions concerning jury instructions impedes improvement charge of the court in criminal cases. applicable v. United is States not in the case us, however,
before because it was based сircuit supervisory power, court’s defendants and because here the offered evidence. See 236 Ga. supra, corpus Caldwell, Farmer v. awas habeаs case Georgia which arose from a It did conviction. not involve charge jury. the court’s It dealt with the district judge’s authority petitioner’s to discredit the habeas tеstimony. uncontradicted There the court stated that the accept testimony trier of fact is not bound to even where Although inapplicable is contradicted significance us, the case before ofFarmer is that Knapp, supra, suggests juries consistent with they accept any testimony, instructed that or can when it contradicted, must reconcile particular way. charge
United States v. involved the sitting Georgia aof district court which is somewhat charge given similar to the before us. There case *4 285): judge charged district "Now as follows your duty, you testimony can, it-is to reconcile the spoken of all the so that all witnesses shall have the truth. testimоny, are unable to reconcile the may testimony reject of such witness or such witnesses as believe to be untrue or mistaken, credence to the evidence think give The worthy most of belief.” circuit court reversed conviction, out that the instruction directed the pointing testimony of two witnesses conflicted jury that where the whole of the of one witness any part, and the whole of the accepted rejected. other witness must be The to this attack. Here the trial court belоw is not to be found the conflict said believe your duty irreconcilable "... then it would be . . . most reasonable that evidence [which] here the entire acceрt not directed to believe evidence as witness but was directed to such is in and credible to them. This seemed most reasonable concept expressed by Chief accord with the common sense in v. concurring opinion Brown Judge It also is in accord with the supra. Gordy instruction approved criminal summary, charges form Judgеs appears supra. v. State and Form sound. on the other hand sound but free of arguable (except possibly basis for enumeration of error "intelligence”). inclusion of word McCLAIN; and vice 30641, 30642. McCLAIN versa. Nichols, Chief Justice. temporary
This is an cross from a appeal an$ order in a case. alimony of the trial court divоrce in 1973 and the wife filed suit parties separated parties for divorce. While that suit was pending, agreement whereby entered into a reconciliation thе divorce husband, in consideration of the dismissal of the marital resumption relationship, action and $50,000 cash, deed her one-half interest pay the wife $200,000, the home valued in excess of establish a trust of