142 Ga. App. 42 | Ga. Ct. App. | 1977
On November 18, 1975, defendant was tried simultaneously on two separate indictments of attempted burglary and attempted rape. These offenses were alleged to have occurred at separate times and places and on separate dates. He was found not guilty of the offense of attempted burglary by reason of insanity but was found guilty of the attempted rape. He was sentenced to serve a term of 10 years to run consecutively with that of another case. Motion for new trial was filed and denied. Defendant appeals. Held:
1. A number of the enumerations of error deal with allegedly erroneous instructions as to reasonable doubt, the role of the jury in getting the law from the charge and the facts from the witnesses, the credibility of witnesses, the duty of the jury to reconcile conflicts in evidence, and the form of the verdict to be returned. We have carefully scrutinized the instructions of the court on the law and find in all respects the charge was appropriate to the issues, stated correct principles of law, and adequately
2. The apparent slip of the tongue in defining the crime of rape (Code § 26-2001) in which the court used the word "and” instead of "in” fails to show such harmful error as to require a reversal.
3. The court after charging the attempt statute (Code § 26-1001) then charged that a person may be convicted of criminal attempt if the crime attempted was actually committed in pursuance of the attempt (Code § 26- 1004). Defendant contends there was no evidence of the completed crime, but the evidence shows otherwise. This enumeration is without merit.
4. The criticisms offered as to the court’s charge as to insanity and the law with respect thereto fail to show harmful error. The use of words and phrases not in keeping with the language of Code § 26-702 (lacking mental capacity to distinguish between right and wrong) as to insanity and mental incompetency cannot be said to be harmful to the defendant. Nor was the jury confused as to the instructions as to insanity since defendant was found not guilty of one of the charges against him by reason of insanity. The better practice is not to give the jury instructions as to all of the provisions of Code Ann. § 27- 1503 (Ga. L. 1952, p. 205; 1972, p. 848) as to the actions to be taken by the trial judge if a jury returns a verdict of not guilty by reason of insanity. It is mandatory to charge the first part of Code Ann. § 27-1503, supra, relating to the form of the jury’s verdict. See Sanford v. State, 217 Ga. 825 (125 SE2d 478); Pierce v. State, 231 Ga. 731 (204 SE2d 159). But, while inappropriate, it has been held not to be harmful error requiring a reversal when the court charges this entire language. See Hulsey v. State, 233 Ga. 261, 262 (210 SE2d 797). None of the enumerations of error complaining of these instructions is meritorious.
5. The next enumeration of error to be considered concerns the giving of a burden of persuasion charge as to insanity by charging the burden shifts to the defendant to
6. Since there was evidence of flight, the court did not err in charging the law as to flight. The enumeration of error complaining of this instruction is not meritorious.
7. The charge as to the alleged confession, admission or incriminating statement, was not subject to the complaint that the court should have instructed the jury it could disregard it if the defendant was not told he had a right at any time during interrogation to stop answering questions. Stapleton v. State, 235 Ga. 513 (1) (220 SE2d 269) does not hold such failure as being error.
8. By stipulation of the parties it was agreed that the court could read a statement by the defendant to the jury, deleting certain vulgarity. The statement was read, and the court stated: "Let the record show that counsel for the Defendant, and the Defendant himself agreed in open Court and stipulated that the Court could read all of the foregoing material in the presence of the jury.” Following colloquy between the court and counsel, the court then stated: "That stipulation is entered that the vulgarity
9. Having considered each and every alleged error properly argued and not waived either expressly or under Rule 18 (c) (Code Ann. § 24-3618) as to structure and content, and finding no reversible error, the judgment must be affirmed.
Judgment affirmed.