*1 jury proceeding, transcript testi- defendant of the selection tain jury attorney presence at the waive his his did not authorize fied he selection. presented subse- here is whether defendant attorney’s presence apparent acquiesced quently his to his waiver of jury selection. at right counsel informed defendant record shows trial According present jury to an submitted affidavit at selection. be the prior though attorney, him to discuss met with trial trial defendant empanelled and, jury еar- defendant had which had been present jury right selection, he informed of his to be lier been voiced picking jury complaint in his Because absence. supрort finding defendant which would evidence acquiesced choosing attorney’s jury absence, in his the denial to his Dudley v. be disturbed. See trial should not of the motion State, new 815) 148 Ga. JJ., Andrews, 14, 1991 denied March Ray Dupont Smith, Young, Attorney, Cheney, Lisa M. K. THE STATE.
A90A1845.ROBINSON v. Carley, guilty counts before a and found tried judgments He of conviction and of armed from the jury’s guilty trial court verdicts. sentences entered The sole of error relates the failure enumeration requested charge § 24-4-6. on OCGA court to (4) upon App. relies progeny, prоposition if its which stand for offering the direct could find that the witnesses any then neces- so that conviction would defendant sarily evidence, to rest should However, § in this аccordance with OCGA 24-4-6. instructed the was evidence that the possibly as could be classified “circumstantial” similar to one worn owned a perpetrator wаs at home and, thus, crime dence the offense. While such could have committed certainly “circumstantial,” it be considered sufficient, itself, not be to authorize a conviction. “The ne- cessity on circumstantial evidence in Horne v. supra ., . if witness[es] . arose because that case found the offering the direct evidenсe to have been was left to decide the defendant’s from circumstan- tial evidence without instruction the law of circumstantial *2 judice predicated In [S]tate’s evidence. the case sub the case is en- tirely [victims]. the direct evidence offered the If the [these were] determines witnesses then there would nobe authоrizing guilty. Therefore, other evidence a verdict of in this case requiring charge is there no issue the on law the of circumstantial (Emphasis supplied.) Mayfield State, evidence.” v. (3) (265 366) (1980). SE2d apparently sight charge loses the of fact that the requested provides that “to warrant conviction on circumstan- proven only alonе, tial evidence the facts must not be consistent with theory guilt, every theory but must exclude other reasonable guilt (Emphasis supplied.) clearly other than the not of thе accused.” It is give charge fail this, reversible error to to in a such as where tion, circumstantial evidence not alone would warrant a convic- general grounds. would, fact, in mandate a reversal on the was, most, in “circumstantial evidence” the instant cor- case eyewitness testimony roborative of the victims’ direct and is not oth- appellant’s guilt. appellant’s erwise relevant Since conviction is de- pendent entirely upon eyewitness testimony charge the victims’ and a impeachment given, on was not left instant case was appellant’s guilt entirely decide dence or innocence evi- standing which,
because was cirсumstantial alone, would authorize his conviction. It follows that the trial court requested appellant’s charge. did not err in McMurray, Pope, J., Banke, J., P. P. judgment only. J., Andrews, JJ., concur in Sognier, Birdsong, Cooper, J., J., J., P. Judge, dissenting.
Sognier, Chief respectfully I must dissent because enti- believe requested charge given. tled to have the
Appellant’s misidеntification, sole defense was on cross-ex- amination he elicited several inconsistent statements the vic- conflicting tims: one victim testified in a matter about whether gunman wearing saying during hat, at various times cross-ex- wearing amination both that hat was not and that he wearing hat; have been the other testified direct examination appellant prior that he had never seen but admitted preliminary hearing on cross-examination that at the he testified 370 prior There occasiоns seen testimony as victims’ well. inconsistencies other minor Although judge in her defined circumstantial evidence my requested charge.
charge, view she refused court’s), quеstion (as the victims had it was a whether in the trial testimony provided their direct been Consequently, on circumstan- the case. dence authority reversible error under еvidence was tial State, (4) (91 824) (1956). App. 345, also Green See Ga. 346 93 (1983); App. 548, Gibson v. v. 549 Ga. App. 718, “These cases Ga. permitting policy express to determine defend- to avoid [where from circumstantial evidence ant’s impeached] providing direct evidence been the witnesses the law circumstantial evidence.” instruction on without supra. Green, question whether, in Jackson under the standard set forth 560) (1979), Virginia, SC LE2d convic- 443 U. S. the circumstantial evidence
tion was this case is rather is at issue here. whether actually guilty on *3 evidence. I believe that it is verdict of that based its possible they did, effect of all the circumstan- whether because the cumulative by conviсtion, resulted, itself, in a tial evidence could or not. bright appellant that red The circumstantial evidence owned jacket one the victims identified as the оne identical Hawks argument. closing was stressed to worn robber heavily on fact that when was arrested also relied State facing addition, victims. In he removed the wаs circumstantial evidence the perating before
indicating at home that although appellant claimed he was recu- and injury robbed, when was from a baсk incurred injury. robbery police reported that or seen a doctor for the per- collectively, my view, well have circumstantial if it the victims believed suaded had been to convict impeached and not believe the direct identification did general grounds might Thus, that reversal on the dence. the fact inexorably thаt the conclusion leads indicated requested charge point presented distinguishes App. I was, indeed, error. must harmful and reversible
out also that fact Mayfield frоm this case 366) (1980) majority. I 459, relied order new trial. reverse this conviction and Presiding Birdsong Judge and am authorized state Cooper Judge join in this 15, denied March Kondritzer,
Kenneth D. for Attorney, Joseph Slaton, Drolet,
Lewis R. J. PIRKLE
A90A1870. v. HAWLEY et al. (405 SE2d Beasley, judgment upon jury Plaintiff Pirkle entered verdict (a Daily partnership) against for defendant Gwinnett News de- Hawley injured $50,000. 20, 1987, fendant when her car was struck intoxicated. Pirkle suеd She was on December by Hawley, an automobile driven who was Hawley negli- direct acts recovery gence sought furnishing the News for alcoholic noticeаbly beverages person, knowing person to a intoxicated driving proper steps vehicle, would soon prevent after awareness of his intoxication. аppears following version of the facts favorable to Advertising Department the verdict. The and Promotions Daily planned party employees, Gwinnett a Christmas for its party about in35 number. The News subsidized the amount expenses. Sunday, $350, half the total was set for manager, Gruber, December and Bob the retail sales was dele- gatеd responsibility spent money for it. on room rental at the keg Road, B&B supplies. beer, food, Ranch on Old Peachtree requesting bring He sent an invitation that women a covered quart liquor. optional spouses dish and men a Attendance was facilitating party by or dates were included. Gruber was aided employee advеrtising department. Knox, Sam an News’ party preliminaries, During Gruber and Sam Knox discussed *4 they anyone They got how the lookout and to use common would handle who drunk. decided to be on managing
sense situations begin p.m. which arose. The was scheduled to at 3:30 Around Hawley, employee, time, arrived own car and drinking his own beer. ten to Over thе next few hours consumed cups twelve 16-ounce of beer. Witnesses who attended the noticeably agreed gave varying became intoxicated but times when this occurred. Knox noticed that was too intoxicated to p.m. brought drive at around 6:30 attention. to Gruber’s Having drinking problem, discovered another Gruber decided