*1 suggested by premises was No graphs, and so on. use at put being property except the use to which witness housing. rental non-white seizure, the time of the which was capitaliza- based on were given by All four estimates witnesses property, capabilities income-producing tion the known experience. condition, rental Thus past its location, opinions upon facts provided with all here were this construing could, in based, they were of the witnesses arriving capitali- at a their own method of using evidence and figure different from reach a figure income, zation based on though figure was given witnesses, even of those testifying. persons higher by any than given slightly App. SE2d Southern Raley, Chalker (2) (50 226); Sammons v. App. County, Cobb ample There Copeland, 85 support the verdict. evidence to
Judgment Nichols, J., con- J., concurs. P. affirmed. judgment. in-Divisions 8 and with curs v. THE STATE. 41879. WRIGHT March 8, 1966 March Submitted Decided Rehearing April 1, 1966. denied *2 Elijah Thomas B. A. Liick, Brown, appellant. for Albert B. General, Solicitor J. for Wallace, Driebe, Charles appellee. of Judge. trial an
Nichols, Presiding “On a indictment arson, for it is not error to admit showing feelings evidence anger of part dislike existed on of defendant toward of property.” the owner Hammack State, (1). At the time the above was language case decided the con now in appeared Code tained 38-202 in of the Code of § § and such case as an 1873, exception stands to rule announced (71 in Bacon v. 261, excluding SE2d 615), logical evidence of other “unless there is crimes some connection in objected between two.” The evidence the case sub judice was of and words actions of the defendant toward the owner and property therefore admissible to “feelings” show the defendant property of the toward such owner. instructing right the defendant as to his to make an statement trial court
unsworn the following: included “You in oath, are not under the absence your objection, of you you cross examined solicitor general, shall compelled question not be to answer on cross examination you should think to decline an answer.” (2) in
Under the decision Gibbs v. was error such instruction defendant Supreme a requiring new under the decision of the 325), Court in Watkins v. for necessary, contends, the State the defendant as objected verdict in order have to such instruction before court. An question properly before this examination objection case, supra, record in the Watkins discloses that no complained prisoner was made to the instructions to the there presented of until the motion for trial amended new trial court. error for the defendant contends
The charge even Code absence court to fail to 26-2205 § “Arson timely follows: request. a This Code section is village) punished shall city, town, (except daytime labor than arson com imprisonment period shorter defendant is that night.” contention in the mitted *3 night city, town, in a or burning place the did not take at or charge. give such village that it error to fail to and therefore was recognized Brightwell 482, it was that such v. part fixing crime an aid in was not a law but charge be Code Accordingly, sentence. it would section in arson the defendant harmed any case, but was charge in the by jury the failure of the trial’ court to so judice? is the fire occurred case sub It his contention here daytime village. or as- city, town, in the in a Even and not did daytime the fire in the not occur suming that occurred (Ga. village. city, town, 1872, p. 16), a In 1872 L. outside or incorporation for the “unin- Assembly provided the General of corporated villages” superior Thus, and courts. towns incorporated municipality. an include “village” may may not Dictionary, a village: of Black’s-Law See also as to definition n (4th Ed.) ‘village’ term frequently 1011. “The p. 1740; CJS assemblage less a to describe an of houses popular in sense used than, urban in city nevertheless or semiurban a town or incorporated. regard whether It is character without in statutes.” Am. sense Jur. used'in this frequently Accordingly, proper interpre- Corporations, Municipal 5. § “village” appear tation of the word in Code 26-2205 would § assemblage dwellings be “an or combinations of storehouses both burning of located close where the of one proximity endanger possible fire,” would others to destruction under park such definition a trailer “house- where numerous parked are on individually trailers” marked lots and used dwellings, although outside incorporated municipal- located “village” ity, would as referred in the above cited Code section.
Therefore, charge while the failure to provision of such Code may section have been error it was error to the harmless defendant since under the evidence the not take burning place did in an imprisonment area where the shorter period apply. of would
Inasmuch as the again case must be tried and the evi dence be the not on general another same usual grounds of the motion for new enumerations error raising the same passed contention will not upon, remaining ground complains an excerpt which from charge trial court from the immediately withdrew jury’s consideration will not likely recur on another trial.
Judgment Deen, reversed. J., concurs. J., concurs specially. Rehearing.
On Motion for The contention is made that ruling Gibbs v. App. 272, supra, an holding that instruction in the language same complained as that here inis conflict with the Ash decision in
507). An examination of the instruction to the
defendant
Ash
State
shows that he was instructed
he
re-
quired
to answer
questions on cross
while in
examination,
*4
the Gibbs
judice
case
the
and
case sub
the instruction was
that
compelled
he could not be
to
answer
question should
he think
to
decline
do
appellate
to
so. The
courts uniformly held,
exemplified
as
by
decision
Supreme
in Roberts
State,
(5
Court
v.
to examination is being position placed in question while in the other he is making his statement subjected merely by to examination cross an- deciding questions should given he the burden of and examina- to answer on cross and which he decline swer should tion, answer he must. some reluctantly concur concurring specially. I Judge, and between Ash judgment of reversal. distinction opinion is razor-thin.
Gibbs,
majority
as set out in the
supra,
prac
highest
the better
It
court has said that
is true
our
general charge any reference
tice is to omit from the
to
an unsworn statement is not sub
making
rule that an accused
Cargile
ject
State,
to
v.
examination without his consent.
cross
(2) (74
State,
Thurmond v.
At the time of
was not
criminal
this
charges
perfect an
object
to the
harmful
cases
(106
McAfee,
270,
SE
appeal. Moore
required
now
By
Assembly,
1966 Act of the General
object
jury,
giving
that a
to the
of an instruction to the
party
verdict, “stating distinctly
before the
its
the matter
jury returns
objects
grounds
objection.”
L.
he
and the
of his
Ga.
to which
necessary
1966,
object during
it is
the trial to
p. 493. And
“A
harmful statements
conduct of
court
counsel.
until after
then
quiescent
remain
the verdict
party cannot
made
court
.
.
himself
.
avail
remarks
where
McAfee,
270, 275,
Moore v.
verdict
adverse.”
(28
(over-
139)
supra; Pulliam v.
37));
Potter v.