LEACH v. THE STATE.
29828
Supreme Court of Georgia
May 20, 1975
Submitted April 21, 1975
SUBMITTED APRIL 21, 1975 — DECIDED MAY 20, 1975.
Myers, Mull & Sweet, Gale W. Mull, for appellant.
Lewis R. Slaton, District Attorney, Allen Moye, Assistаnt District Attorney, Arthur K. Bolton, Attorney General, Lois F. Oakley, Deputy Assistant Attorney General, for apрellee.
HALL, Justice, dissenting.
I dissent for the same reasons stated in my dissent in Sims v. State, 234 Ga. 177.
This court has held that the right of counsel for an accused includes the right to effective counsel. Pitts v. Glass, 231 Ga. 638 (203 SE2d 515); McAuliffe v. Rutledge, 231 Ga. 1, 3 (200 SE2d 100). Under the mandate of this court in Sims, supra, the most effective counsel is one who plays fast and loose with thе 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.” Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221).
The result in Sims, supra, and this case, tends to allow the criminal justice system to be held in contempt by the publiс.
OPINION
JORDAN, Justice.
Franklin Leach appeals a murder conviction rendered against him by a jury in the Fulton County Superior Court on February 12, 1974. After conviction appellant was sentenced to life imprisonment.
1. Appellant complains that the trial court erred in admitting into evidence apрellant‘s waiver of counsel,
2. Appellant, who was not indicted for felony murdеr, further contends that the trial judge erred in charging the jury on the felony murder rule as follows: “A person also commits the crime of murder when, in the commission of a felony such as armed robbery is, he causes the death of another human being irrespective of malice.” Appellаnt‘s complaint is that it was reversible error to so charge the jury without further charging them as to the elements of the felony. We have reviewed the entire charge and there was no explanation or charge as to the elements of armed robbery. This constituted reversiblе error. Edwards v. State, 233 Ga. 625 (212 SE2d 802); Teal v. State, 122 Ga. App. 532 (177 SE2d 840).
3. We have carefully studied appellant‘s other enumerations of error and find them to be without merit.
Judgment reversed. All the Justices concur, except Hill, J., who concurs in the judgment and Ingram and Hall, JJ., who dissent.
SUBMITTED APRIL 14, 1975 — DECIDED MAY 20, 1975.
K. Reid Berglund, Jacques O. Partin, II, Assistant Public Defenders, for appellant.
Arthur K. Bolton, Attоrney General, Lois F. Oakley, Deputy Assistant Attorney General, Lewis R. Slaton, District Attorney, H. Allen Moye, Assistаnt District Attorney, for appellee.
HALL, Justice, dissenting to Division 2 and the judgment of reversal.
After the jury was excused from the courtroom to begin their deliberations, the able trial judge asked counsel for the defendant and the state if there were any “exceptions, objections, оmissions, corrections.” Counsel
To me it is ludicrous to hold that an accused lay person can personally waive his fundamental constitutionаl rights to counsel and self-incrimination and yet not waive any objection to a charge even where he is represented by effective counsel.
INGRAM, Justice, dissenting.
The majority opinion overlоoks the doctrine of harmless error. There can be no reasonable contentiоn that malice was not proven under the evidence in this case. The only issue involved herе was whether this defendant was the person who committed the homicide. The evidence was overwhelming that this was an intentional killing involving malice and the probata established the allеgata of the indictment. Under the cold, harsh facts of the case, I would treat the trial cоurt‘s isolated reference to felony murder as harmless to the defendant‘s case.
I would have a wholly different opinion if the evidence showed some issue with respect to maliсe because, in that event, the Edwards case cited by the majority would be controlling. However, there is a substantial factual distinction between this case and Edwards which can be readily discerned from Division 2 of the Edwards opinion. The question of malice was very much in issue in that case.
Not every error requires reversal, and I dissent to the reversal of this murder conviction for a technical but nonprejudicial error. I dissented in Robinson v. State, 232 Ga. 123 (205 SE2d 210), wherе a majority of the court upheld a conviction for forcible rape under a definitiоn of statutory rape. There, it seemed to me, the jury had to be confused by the charge and I could not agree the error was harmless under that transcript and all the issues argued on appeal. However, if a majority of the court could find the errors there were harmless, I am at a loss to understand why the error here was not harmless. See,