Defendant was convicted of the offense of burglary. His motion for new trial was thereafter filed, heard and denied. Defendant appeals. Held:
1. Defendant’s first enumeration of error contends the trial court erred in denying his motion for new trial (general grounds only).
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His argument with reference thereto is one sentence in that the trial court erred “in overruling and denying his motion for new trial for each of the reasons assigned in this appeal; and, for the further reason that the competent evidence of probative value is not sufficient to support the verdict and judgment.” We deem this a mere restatement of the enumeration of error. A restatement of the legal contentions is not argument which will supply the reasons why this court should consider the contention of the party. “ [E]xcept in the most unusual of analytic circumstances a legal contention will not prove itself.”
Wilkie v. State,
2. In enumeration of error No. 2 the defendant contends that the trial court erred in allowing in evidence, over defense objection, a state’s exhibit with reference to a waiver of rights purportedly signed by the defendant because same was not furnished to the defendant and his attorney more than ten days prior thereto, notwithstanding his written demand for same. There is no merit in this complaint. This exhibit was not admitted in evidence. Further it was not a scientific report with reference to OCGA § 17-7-211 (formerly Code Ann. § 27-1303 (Ga. L. 1980, p. 1388)), and the jury was not apprised of the defendant’s waiver of rights with reference to the written statement he had executed, copy of which had not been given to defense counsel in accordance with his request. See OCGA § 17-7-210 (formerly Code Ann. § 27-1302 (Ga. L. 1980, p. 1388)). A Jackson v. Denno (Jackson v. Denno,
Further, the court did not err in allowing defendant’s written incriminating statement in evidence over the objection made, and enumeration of error number 3 is not meritorious.
3. Following the Jackson v. Denno hearing with reference to the written statement signed by the defendant (although written in the verbiage of the police officer as a statement made to him by the defendant) the court ruled that the police officer complied with all constitutional and statutory rights in obtaining the statement from the defendant and allowed the jury to hear the evidence with reference to the statement obtained from the defendant. The court then ruled in the presence of the jury: “It appears to the Court that, from a legal standpoint, the Officer did comply with the constitution and the statute in advising [defendant] of those notices required by law or warnings required by law. It is a question of fact for the jury to determine along with your other deliberations as to whether or not the warnings were knowingly, and voluntarily, and freely waived or not. That will be a jury question which you must decide later, ladies and gentlemen.” At that time counsel moved for mistrial contending the court’s instruction was tantamount to an expression of opinion by the court as to a material fact in issue before the jury that ultimately should have been decided by the jury. Whereupon, the court then
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further stated: “As I understand the law on this subject matter, it is a mixed question of law and fact. I am stating as a matter of law and I’m ruling only as a matter of law that the warnings were given. Then it becomes a question of fact for the jury to say whether they were adequately given, freely given, knowingly waived, and voluntarily... from a legal standpoint [whether] what was done was adequate as far as the constitutional and statutory warnings having been given,” and denied the motion for mistrial. The court then further instructed the jury that it was not commenting on the evidence but only on a point of law which the court understood it was required to do and was not expressing an opinion as to the facts of the case. Further, “[t]hat belongs exclusively to you — every point of fact.” Thereafter, under Georgia law, the jury again rules upon the same issues. See
Rose v. State,
Code § 81-1104, in effect at the time of defendant’s trial (now OCGA § 17-8-55, effective November 1,1982) provides: “It is error for any judge of a superior court, in any case, whether civil or criminal or in equity, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused, and should any judge of said court violate the provisions of this section, such violation shall be held by the Supreme Court or Court of Appeals to be error, and the decision in such case reversed, and a new trial granted in the court below, with such directions as the said Supreme Court or Court of Appeals may lawfully give.” It is error to violate even the spirit of this section.
Crawford v. State,
Here, the trial court’s instructions to the jury were in effect an opinion as to what had been proven. The court incorrectly assumed that the jury should be apprised of the court’s findings in the first step of determining voluntariness (to be completed outside the presence of the jury). Consequently, the court erred in apprising the jury of the court’s prior determination in step one of this two-step proceeding required by Jackson v. Denno,
4. The remaining enumeration of error complains that the trial court erred in failing to instruct the jury as to the lesser included offense of theft by taking. First of all, the evidence is totally insufficient to require a charge on this lesser offense, the defendant having denied he was guilty of the burglary charge and testified he thought the co-defendant worked in the VFW and only learned that the co-defendant was breaking into the VFW “when the law got there,” and he only went into the building when the co-defendant called him into the back door. Theft by taking is not an affirmative defense in a burglary trial. See
Gray v. State,
Judgment reversed.