Pickler v. State
138 S.E.2d 171
Ga.
1964
Check Treatment

*1 agreement, plaintiffs the in with the suant to and accordance ap- another the court defendant surveyor, one the named majority of surveyors acted and pointed the third. The par- the line between boundary and fixed them ascertained the case all issues agreement ties. eliminated The the the of boundary the the line between lands location of this Appeals of and not did, and since it Court parties; accordingly it is of error and jurisdiction writ court of has Taylor Murray, that See to court for decision. transferred Weimer, 583); Cauble 215 Ga. 628 Black, Inc. v. Hotel No. 584); and Gilbert Appeals. All the Justices concur. the Court to- Transferred July 1964. Butler, Albert E. error. Royal, Zorn Zorn,

Wm. A. & 22556. PICKLER v. THE STATE. 1. Justice.

Quillian, charges An indictment which the accused by one count with robbery robbery force and by use of weapon separate offensive him accuses not of offenses but of grades different or species offense, of the same and is not sub- ject ground Long to demurrer on the duplicity. 293, 314; Lampkin v. State, 87 Ga. 516 present charged jury: case “Gentle- right under this the defendant men, law has to amake statement if he sees fit so. to do That statement shall the jury trying not be under oath shall give think to it it is entitled and credit as to as by receive. the statement made the de- You case. In fendant to right announce alternative the defendant shall have to and if he open that he be sworn court desires any other shall examined witness.” be examined and cross alleges for new trial ground amended motion A statement, but was sworn defendant did not an unsworn quoted to the exceptions examined witness. as a motion are in in the amended charge presented shown adjusted to the facts it was substance statement, made no unsworn defendant in that the record it alluded in that while confusing and that witness, right to be sworn as accused’s given, was to be weight or credit as what *2 considering applicable principles nor as to the in decid- testimony, applicable those principles his sworn statements, to unsworn weight given be and credit to testimony the defendant’s and left in as to whether doubt having under oath. been be should considered charge adapted applicable to the record not and charge a. as witness. The where accused testified casei defendant, confusing by the and was, contended for reasons deprive did the defendant of the benefit having his testi- testimony considered and mony as sworn not as an unsworn (Code 38-415). statement. 1962, pp. 133, L. 134 Ann. Ga. § (113 Sikes, 416, As v. was held Ga. SE Sikes 153 725 1324): charge by jury “Generally 24 ALR court to evidence; must and where be authorized given which is not so authorized correct, is abstractly the jury, and mislead and which confuse is calculated Parker, Thornton v. trial.” charge generally require new will (68 208 Ga. 638 contrary contention,

The error was, hurtful to the State’s Ferguson Georgia, defendant. v. 365 U.S. (81 783), advantage an 581 LE2d which is SC 5 holds testimony to the defendant to have considered as sworn his always testimony, “We have quotes approval with text: permitting the law criminals to opinion, been of [the] we are now dis in the detection of testify guilt; would aid equally pro for the posed to think that it be serviceable will L. also 14 Am. Rev. 396. See tection innocence. I Am. support cites in of the Ferguson case Reg. L. 129.” The definitely out point of this court which many opinions view an over unsworn statement. advantage testimony of sworn (13 Vaughn State, v. 856); SE State, 88 47 Underwood v. Ga. (98 State, Ga. SE (16 v. 149 23 Medlin 64); 88 731 SE (117 Prater 321); SE Chapman State, v. Ga. 393 551); 155 State, v. (127 Willingham 296); SE State, Douberly 887); Ga. 142 SE 223); Allen v. 65); Ga. 430 Cofer State, 213 Ga. 22 In the cases cited much is

emphasis put upon grade difference proof testimony between sworn unsworn statement, and that, while very clear an un- testimony given sworn statement on is case, a criminal ordi- narily ascribed credit than an more unsworn statement. overruling

The trial contained erred the amended for trial. motion new Judgment except Duckworth, concur, reversed. All the Justices J., J.,

C. Candler, who dissent. July 11, 1964. T.

William Brooks, William T. Boyd, J. Solicitor Robert General, Sparks, Wil- liam Spence, Eugene E. J. Walter LeCraw, Cook, Gen- *3 Rubye eral, Jackson, G. Assistant General, contra. dissenting. Justice, Chief I dissent from the rul- Duckworth, judgment Headnote 2 of reversal because even court committed error in its it was harmless error not detrimental to the accused.

Candler, J., in this dissent. concurs

22563. REED v. PEEPLES.

Argued July Kinney, H. E. Pittman & Kinney, D. Mitchell, Jr., Spence, W. Herman & Mitchell, Mitchell question Justice. The sole for decision is: did the Almand, in dismissing court err a motion for new trial because