Hall v. The State., 139 Ga. App. 142, 227 S.E.2d 917 (1976)

Georgia Court Of Appeals

Status: SUBMITTED

Docket Number: 52310

Parts: MARSHALL, Judge.

Linked as:

Summary

Judgment affirmed. Pannell, P. J., and McMurray, J., concur.

Summary

Judgment affirmed. Pannell, P. J., and McMurray, J., concur.

Text

Appellant Hall was indicted, tried and convicted of burglary in July, 1973. He was sentenced to serve five years imprisonment. The Supreme Court of this state granted Hall the right to pursue an out-of-time appeal. Hall v. Hopper, 234 Ga. 625, 632 (216 SE2d 839). Pursuant to that right, appellant has enumerated seven alleged errors. Held:

1. The first enumeration of error asserts that one of the grand jurors who returned the indictment against appellant was an elected public official, i.e., a city councilman, and was thereby incompetent to serve as a grand juror. It is contended this rendered the indictment void. Ga. L. 1973, p. 726 (Code Ann. 59-201). No objection was made prior to the return of the indictment nor has any showing been made that defendant had no knowledge of the alleged defect. The challenge, not being timely filed, was waived. Sanders v. State, 235 Ga. 425, 426 (219 SE2d 768). Moreover the 1973 amendment to Code 59-201 excluding elected public officials did not have an effective date; therefore it became effective July 1, 1973. The indictment was returned on May 21, 1973. It follows that the July amendment had no legal effect upon the May indictment.

3. Hall complains he was prejudiced by standing trial in prison garb. The facts reflect that the attire was explained to the jurors by the defense, the jurors were subjected to voir dire on the impact of that attire, and thereafter no objection was made to the clothing worn. Although a defendant has the right to wear civilian clothes rather than prison garb at his trial, this procedural right was lost where no motion for continuance to obtain civilian clothing was made, and no objection to the procedure was made. Sharpe v. State, 119 Ga. App. 222 (1) (166 SE2d 645).

4. In enumerations of error 4 and 5, appellant complains that the state's attorney prejudiced appellant's right to a fair trial by making improper comments in the opening statement and later in closing argument.

(a) The comment complained of in the opening statement occurred when the state's attorney mentioned to the jury the bifurcated trial procedure (extant in 1973) wherein the jury was told it first had to determine the question of guilt or innocence and later would receive further instructions from the court. Appellant complains that this amounted to an expression by the state's attorney of a foregone conclusion of guilt. Counsel for the state did not state that guilt must be found but alternative findings of either guilt or innocence were required. Upon objection to the argument, the trial court admonished the state's attorney to restrict his argument to evidence rather than procedure. We find no prejudice in the remarks and even assuming error, it was cured by the corrective comments of the trial court. See Smith v. State, 235 Ga. 852 (1) (221 SE2d 601); Newton v. Cohen-Walker-Bailie, Inc., 111 Ga. App. 753, 755 (143 SE2d 14); Trammell v. Atlanta Coach Co., 117 Ga. App. 396, 398 (5) (160 SE2d 648). The full charge being in the record, what it lacks when divided is supplied when the parts are all united. Brown v. Matthews, 79 Ga. 1 (4 SE 13). There was no error in this portion of the charge.

6. The seventh enumeration of error dealing with the effectiveness of counsel, has been expressly abandoned. Rule 18 (c) (2), Rules of the Court of Appeals (Code Ann. 24-3618).

Gary A. Sinrich, for appellant.

1976