Salisbury v. State
Salisbury v. State
Dissenting Opinion
dissenting. I dissent from Headnote 3 of the opinion and the judgment of affirmance because the charge that if the State proved its case beyond a reasonable doubt the jury would be authorized to find the defendant guilty as charged, excluded from the consideration of the jury the evidence of the defendant, including his statement.
I am authorized to state that Mr. Justice Nichols concurs in this dissent.
Opinion of the Court
Henry Cook Salisbury was indicted for robbery by use of an offensive weapon. He was convicted and sentenced to thirteen years servitude in the penitentiary. He appealed from the judgment and sentence. Held:
1. The first enumeration of error complaining that the court erred in allowing a witness for the State to testify, over objection, as to the condition of a gun at the time it was found in the possession of the accused three weeks after the commission of the robbery, which gun had been admitted in evidence without objection, is without merit. On cross examination of the witness, counsel for the accused elicited testimony regarding the condition of the gun at the time it was found in the possession of the accused. See Salisbury v. State, 222 Ga. 549, 550 (2) (150 SE2d 819).
2. The court did not err in refusing to allow counsel for the defendant to elicit testimony on cross examination of a witness to the effect that eyewitnesses had made mistakes with respect to the identification of the perpetrators of separate and independent crimes having no relation to the crime charged against the accused. The second enumeration of error is without merit. Smith v. State, 202 Ga. 851, 867 (45 SE2d 267); Quinton v. Peck, 195 Ga. 299 (5) (24 SE2d 36); Stevens v. State, 49 Ga. App. 248 (2) (174 SE 718); Hart v. State, 14 Ga. App. 364 (7) (80 SE 909).
3. The third enumeration of error complains of the following portion of the court’s charge to the jury: “I further charge you, Ladies and Gentlemen, that the burden rests upon the State to prove the material allegations of this indictment to your satisfaction and beyond a reasonable doubt, and if the State does that, then you would be authorized to find the defendant guilty as charged in the indictment. On the other hand, if the State has not carried the burden by proving the material allegations of the indictment to your satisfaction and beyond a reasonable doubt, then you should acquit him. I further charge you, Ladies and Gentlemen, when alibi is relied on as a defense the burden of proof is on the accused to prove the alibi to the reasonable satisfaction of the jury.” Appellant contends that this part of the charge restricted the jury to consideration of the State’s evidence alone. Appellant cites and relies upon Salisbury v. State, 221 Ga. 718 (146
4. The fourth enumeration of error complains that the trial court erred in failing to charge the jury on nonexpert opinion evidence on the ground that the State’s case consisted entirely of nonexpert opinion evidence. This contention is without merit since six witnesses who were present at the scene of the robbery positively identified defendant as the perpetrator of the crime. Their testimony was direct, being a distinct “perception of the senses” and not a “mere inference or conclusion of the mind.” Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 752 (7) (12 SE 18). See Code § 38-102; Hicks v. State, 146 Ga. 221 (2, 4) (91 SE 57).
Judgment affirmed.
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