Moon v. The State., 120 Ga. App. 141, 169 S.E.2d 632 (1969)

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Thomas W. Ridgway, District Attorney, Jeannette S. Scott, for appellee.Guy R. Dunn, for appellant.

None of the enumerations of error appeals to be meritorious.

The evidence supported the verdict.

Joseph Moon was convicted on all eight-count indictment charging him on several dates with the offenses of unlawfully possessing and selling liquor (some tax-paid and some "moonshine") and beer, and with carrying a concealed weapon.

Error is enumerated concerning the admission of certain portions of evidence, as will appear in the opinion, alleged expressions of opinion by the court, the overruling of motions for mistrial, the admission of evidence alleged to have been illegally obtained, the admission of a search warrant, certain charges of the court, and a claim of entrapment.

2. Enumerations 3 and 4 deal with the allowing of prosecution witness Jewel Goodson to testify, refreshing her memory from notes which she had made or which had been prepared under her direction and supervision. These enumerations are without merit. Code 38-1707; Harris v. State, 225 Ga. 117 (166 SE2d 338); McKibben v. State, 115 Ga. App. 598 (155 SE2d 449).

The sheriff replied that he did, and that he told her that he had a warrant for her arrest and that she was under arrest.

Counsel for the defendant moved for a mistrial on the ground that the warrant for defendant's wife and her arrest thereunder were wholly separate matters from the charge against the defendant and that the evidence was calculated to prejudice the jury against him. The district attorney asserted that the answer of the sheriff in that respect had not been responsive and that he had sought only to show that she had consented to his entry into the house. The motion for mistrial was denied. This was a matter resting within the sound discretion of the court, and no abuse appears. Manchester v. State, 225 Ga. 234 (1) (167 SE2d 638). Even if he had testified in this connection that the agents reported that the whiskey had been purchased from the defendant (which he did not) it would not require reversal. Maddox v. City of Dublin, 223 Ga. 216 (9) (154 SE2d 443), Brown v. State, 115 Ga. App. 813 (1b) (156 SE2d 180). Cf. Haynes v. State, 115 Ga. App. 656 (7) (155 SE2d 644); Carroll v. Morrison, 116 Ga. App. 575 (4) (158 SE2d 480).

  (b) Error is enumerated on failure of the court to "charge the law of a misdemeanor," and on "failure to charge the punishment for a misdemeanor." Neither of these enumerations is meritorious. Kemp v. State, 61 Ga. App. 337, 341 (6 SE2d 196); Manders v. State, 69 Ga. App. 875 (27 SE2d 105). There was no request for a definition of "misdemeanor," and it is not within the province of the jury to consider or to fix the punishment for a misdemeanor.

  (c) Error is enumerated on a statement of the court to the jury that "in the opinion of this court . . . all testimony as to the result of any search that was submitted to the jury was, in the opinion of the court, established to be a legal search," on the ground that this was an improper expression of opinion by the court to the jury.

We do not so regard it. While it was given as the court's opinion, it was simply in explanation of its prior ruling in the admission of evidence, and was as to a legal question--not as to a fact. The judge is proscribed from expressing an opinion as to a matter of fact, or as to what has or has not been proven, but not as to a legal proposition. "A judge may not express his opinion to the jury; but if, in the decision of any legal question as it arises, he must pass upon the facts, the rule does not apply." Howell v. State, 162 Ga. 14 (5a) (134 SE 59). "[T]he court should not intimate or express an opinion to the jury upon the facts of the case " (emphasis supplied), but a statement of his reason for admitting or excluding evidence will not violate the rule. Parker v. Wellons, 43 Ga. App. 721 (3) (160 SE 109). Again, the judge simply performed the function required of him when he determined that a lawful search was shown to have been made, thus rendering evidence obtained in the search admissible. See Division 14 above. It was not error to refuse to declare a mistrial on the basis of this statement.

The evidence amply supports the verdict, and no error requiring a new trial appearing, the judgment is

1969

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