Thе appellants, Watts and Dorris, were jointly indicted, tried and convicted of the offenses of aggravated assault and aggravated battery. Dorris was sentenced to serve 20 years for the aggravated battery and 10 years for the aggravated assault, said sentences to run consecutively. Watts was sentenсed to serve 15 years for the aggravated battery and 5 years for the aggravated assault, his sentences also to run consecutively. Dorris enumerates 15 alleged errors and Watts enumerates 10. Many of the errors enumerated are duplicative but some are unique to each accused. Inasmuch аs the alleged errors arose out of the same trial, however, we will treat the appeals as one. Held:
1. Each appellant enumerates as error the refusal of the trial court to order at state expense a verbatim transcript of the arguments of counsel and of the voir dire. The argument proceeds on the basis that the affluent defendant can afford to pay for a transcript and the fact of indigency of these two defendants deprives them of equal protection of the law unless the state furnishes them a free and complete transcript. It is noted that the court reporter recorded and transcribed those portions of the argument of counsel and those portions of the voir dire at which objection or controversy occurred.
This case did not authorize the imposition of the death sentence, consequently there was no requirement to provide a verbatim trаnscript of the entire voir dire to enable this court to determine possible issues falling within the holding of Witherspoon v. Illinois,
2. In their second common enumeration of error, appellants complain that they were denied potentially exculpatory evidеnce because the trial court denied them general access either directly or through an in-camera examination by the court to the files prepared and maintained by the state. This included possible prior convictions pertaining to the state’s witnesses, any exculpatory matters in the statе’s files, and evidence of statements made by either appellant.
We start with the general proposition that the prosecution is not required to open its files for general inspection, and the appellant has the burden of showing how his case has been materially prejudiced even when the trial court declines to make an in-camera inspection.
Street v. State,
In this case a part of the material sought by the appellants clearly was evidence which was not in the prosecution’s file. This evidence could have been obtained only if the prosecution actively sought it. For the trial court to require production by the state of such evidence would require the state to investigate the case for the defense. This goes beyond the constitutional limits of Brady v. Maryland, supra, which only proscribed the suppression by the prosecution of evidence favorable to an accused. The prosecution does not suppress evidence by refusing to conduct a search for it, even though the evidence may be more accessible to the state than to the defense.
Hicks v. State,
3. In their third combined enumeration of error, appellants complain that the trial court erréd in not discharging one of the panels of the traverse jury. Beсause of crowded court conditions, one of the traverse jury panels prior to voir dire was placed in a room ordinarily used by witnesses. In that room was inadvertently placed a newspaper containing an article describing the nature of the trial and the offenses involved. Several of the jurоrs were exposed to the article either by reading it or having other jurors mention it in their presence. All jurors on that panel were examined for possible disqualification. With the exception of one who admitted to probable influence (and was excused), the remaining jurors maintained their impartiality and the absence of any influence by the article or a mention of it in their presence.
A party to a lawsuit has no vested interest in having any particular juror to serve; he is entitled only to a legal
*130
and impartial jury.
Grasham v. Southern R. Co.,
4. Appellants have voiced as an enumeration of error the wording of the indictment on aggravated battery and the charge оf the court thereon. The indictment alleged appellants assaulted a victim by shooting her in the head with a shotgun and thereby depriving her of an eye. In substance, their complaint is that an "eye” is not an appendage to the body and therefore does not fall within the contemplation of the statute proscribing aggravated battery. From this position they assert that they were not adequately informed as to the nature of the indictment and the trial court erred in charging the jury that the eye was a member of the body.
Ga. L. 1968, pp. 1249, 1281 (Code Ann. § 26-1305) defines the offense of aggravated battery. Under the committee notes following Chapter 26-13 under § 26-1305, Aggravated Battery, it is stated that the section is designed to replace the former law on mayhem. Former Code § 26-1205 delineated as mayhem the putting out of both eyes or the one remaining; former Code § 26-1204 delineated as mayhem the putting out of one eye. Inasmuch as the putting out of an eye indisputably *131 constituted an offense of mayhem, it follows that an established offense of mayhem likewise constitutes an aggravated battery, the present offense standing in place of mayhem. This enumeration is without merit.
5. Appellants each complain in an enumeration of error that the trial court errеd in allowing the prosecutor to ask appellant Dorris why he had not summoned as a witness a police officer to whom Dorris allegedly had given an innocent explanation for the firing of the shotgun which was used in the offenses chargéd. The enumeration was also extended to the argument of the proseсutor in referring to this fact. The basis of this complaint is that the question and argument amount to a comment on the right of the appellants to remain silent.
The state certainly was entitled to show that the testimony given by Dorris might be of recent fabrication, and it could use the absence of supportive and corroborative testimony as a matter of impeachment. In a trial of a criminal case in which the accused fails to give sworn testimony or to make an unsworn statement, it is improper for state’s counsel to argue that fact to the jury. However, inasmuch as the district attorney’s questions and argument made no direсt reference to the failure of an accused to testify, and could not, since each appellant gave sworn testimony on the merits of the case, he was not prohibited from making these comments concerning the evidence in the case. See
Mitchell v. State,
6. Each appellant urges in an enumerаtion of error the failure of the trial court to charge on the law of circumstantial evidence. The evidence in this case clearly establishes that the two victims observed the two appellants following them in a car. They saw the car, being operated by Watts, draw alongside and one victim saw thе appellant Dorris point and discharge a shotgun at practically point blank range into the car occupied by the victims resulting in injury to both victims.
A charge on circumstantial evidence is required only when the case is wholly dependent thereon, particularly where there was no request for the charge.
House v. State,
7. Appellant Watts enumerates as error the fact that the trial court in its oral sеntence imposed sentences of 15 and 5 years, for a total of 20, but did not orally state that the sentences were to be consecutive. In the court’s written order of sentence, the trial court indicated that the sentences were to be served consecutively.
A sentence must be construed as аny other judgment and the usual canons of construction should be applied. It must be reasonably construed in accordance with the intent of the trial court if the language discloses such intent clearly and without doubt or obscurity. The language should be given its ordinary meaning and should be construed to give effect to thе intention of the judge who imposed it if possible. The language used by the trial judge is unimportant if the purpose and intent in pronouncing sentence is clear. The judgment or sentence must be construed in its entirety.
Shepard v. Bozeman,
8. Appellant Dorris also complains in an enumeration that the trial court imposed the maximum punishment of 20 years and 10 years for the offenses of which he was convicted, yet did not allow the defense to see a presentence report which was utilized by the sentencing judge. The basis of this enumeration is that the court used the report in aggravation and to impose the *133 maximum sentence.
The transcript indicates that the trial court used the presentence report to mitigate and reduce the sentence of Watts. However, it is silent as to what import or impact it had in relation to the sentence imposed upon appellant Dorris. When counsel for Watts argued that the presentence report pertaining to Watts contained references to previous convictions which had not been made known to Watts, the trial court assured counsel for Watts that the court would disregard such information in assessing sentence against Watts. Thus the record affirmatively reflects that the trial court was aware of its responsibility to disregard evidence of prior convictions not made known to the accused рrior to trial. Moreover, the court affirmatively used the presentence report to mitigate Watts’ sentence.
In examining this enumeration, we are aware that the applicable statutes (Code Ann. §§ 27-2709, 27-2710) do not require the contents of presentence reports to be shared with counsel, and it is in the sоund discretion of the trial judge whether to reveal the content of the report to counsel for the accused and for the state. Certainly the trial court was authorized to consider these reports for the purpose of deciding whether to suspend or probate all or some part of the sentences to be imposed in the case. Inasmuch as the record does not show the report pertaining to Dorris was used by the trial court to increase the length of the sentence, and does affirmatively show that it was used for the intended purpose in the case of Watts, i. e., to reduce the sentenсe, we will find no cause for reversal.
See Munsford v.
State,
9. Appellants complain that the trial court erred in not granting their motions for a new trial. These motions were based in great part on the matters previously discussed in this opinion. In addition, throughout this lengthy trial there were repeated motions fоr mistrial, some based upon the matters previously discussed and on other actions occurring during the course of the trial. We have examined each of these, as well as the additional enumerations of error with care. We find that none give cause for reversal of the convictions and sentence in this case. We conclude, therefore, that the remaining enumerations of error are all without merit.
Judgments affirmed.