Gaither v. State
216 S.E.2d 324
Ga.
1975
Check Treatment

GAITHER v. THE STATE

29863

Supreme Court of Georgia

May 20, 1975

234 Ga. 465

amount for these necessary but occasional and unexpected medical expenses could not be estimated monthly. The children are now nine and six years old, ages when dental care is essential if it be affordable. We find that the phrase “all doctor bills” includes dental bills. Of course, such bills would have to be reasonable and necessary just as would bills of physicians and hospitals.

Turning to the psychologist bills, we do not reach the same result. A psychologist is not a doctor. The agreement did not contemplate the payment of psychologist bills.

In view of the fact that this was a case of first impression in this state, the trial court did not err in declining to hold the father in contempt of court. However, the case must be remanded for entry of an order requiring payment of dental bills as provided herein.

Remanded for an order consistent with this decision.

All the Justices concur.

ARGUED APRIL 14, 1975 — DECIDED MAY 20, 1975.

Bennett, Saliba & Wisenbaker, George M. Saliba, for appellant.

Tillman, Brice, McTier & Coleman, George T. Talley, for appellee.

29863. GAITHER v. THE STATE.

PER CURIAM.

This is an appeal from a conviction for the offense of murder. The trial court granted a motion for new trial on the conviction for the offense of aggravated assault and overruled the motion as to the murder conviction.

While in conflict, there is evidence to show that the defendant went to the house of one Gary Rose, his seventeen-year-old friend. The two talked of getting some money as they drank beer and took pills, all of which were provided by defendant. They then went looking for someone to rob. Upon seeing a man walking on the sidewalk with a bag of groceries, defendant handed Rose a gun and told him to “go ahead.” Rose approached the man and asked for money. A scuffle ensued and Rose shot and killed the man. Both Rose and the defendant fled.

  1. The evidence supports the verdict of guilty on the indictment for murder by malice aforethought based upon a conspiracy.
    . See also Code Ann. § 26-801.
  2. The defendant enumerates error in the following charge of the court on the guilt phase of the trial: “Whatever your verdict is, ladies and gentlemen, it must be in writing, it must be dated and signed by your foreman or forewoman and returned into court. I suggest that you just open each of these indictments and write your verdict at the top of this page, because later on in the sentencing feature of the case, you will have to write the sentencing feature in the bottom part of the page. So, if you will, write them at the top of this page on each of the indictments with reference to all of these counts.” He contends that the charge expressed the opinion of the trial court to the jury that the defendant was guilty of the crimes charged.

The state contends that he waived any objection to the charge by virtue of the fact that at the conclusion of the charge the trial judge asked the defendant‘s counsel if there were any objections to the charge and counsel replied, “I will reserve my objections to the charge for motion for new trial.” We disagree. “Under the Appellate Practice Act of 1965 as amended (Ga. L. 1965, p. 18; 1968, p. 1072, 1078), an appellant in a criminal case may appeal and enumerate error on an erroneous charge or on erroneous failure to charge without first raising the issue in the trial court.

. The benefits of this rule are not deemed waived by defendant even where his counsel states to the trial judge that he has no objection to the charge of the court.”
.

It is error for a trial judge “to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused.” Code § 81-1104. See

. A new trial is mandatory.
.

Judgment reversed. All the Justices concur in Division 1, except Gunter and Ingram, JJ. All the Justices concur in Division 2, except Hall, J., who dissents from Division 2 and the judgment of reversal.

SUBMITTED APRIL 21, 1975 — DECIDED MAY 20, 1975.

Myers, Mull & Sweet, Gale W. Mull, for appellant.

Lewis R. Slaton, District Attorney, Allen Moye, Assistant District Attorney, Arthur K. Bolton, Attorney General, Lois F. Oakley, Deputy Assistant Attorney General, for appellee.

HALL, Justice, dissenting.

I dissent for the same reasons stated in my dissent in

.

This court has held that the right of counsel for an accused includes the right to effective counsel.

;
. Under the mandate of this court in
, the most effective counsel is one who plays fast and loose with the trial court. It is no longer the policy of this court that “A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.”
.

The result in

, and this case, tends to allow the criminal justice system to be held in contempt by the public.