Perry v. State, 229 S.E.2d 519 (Ga. Ct. App. 1976). · Go Syfert
Perry v. State, 229 S.E.2d 519 (Ga. Ct. App. 1976). Cases Citing This Book View Copy Cite
11 citation events across 1 distinct court.
Cited for
139 Ga. App. at 706 Finding no harmful error in jury charge5 citing casesThe evidence of which appellant complains related solely to Count 2 of the indictment; this charge was dismissed prior to the submission of the case to the…opening of page *706 (no citing court says what it cites this page for)
  • Roberts v. State, 327 S.E.2d 819 (Ga. Ct. App. 1985).published
    Perry v. State, 139 Ga. App. 705, 706 (1) ( 229 SE2d 519 ). 4.
  • Middlebrooks v. State, 313 S.E.2d 764 (Ga. Ct. App. 1984).published
    Lenear v. State, 239 Ga. 617, 619 (12, 13) ( 238 SE2d 407 ); Perry v. State, 139 Ga. App. 705, 706 (1) ( 229 SE2d 519 ).
  • Barron v. State, 276 S.E.2d 868 (Ga. Ct. App. 1981).published
    The standard charge given by the trial court on reasonable doubt was full and complete and was not subject to the appellant’s objection of harmful error in the use of the language “may be innocent.” Perry v. State, 139 Ga. App. 705, 706 (2…
  • Ricks v. State, 275 S.E.2d 730 (Ga. Ct. App. 1980).published 2 cites
    The charge in question is the same which this court declined to approve but found no harmful error in Perry v. State, 139 Ga. App. 705, 706 (2) ( 229 SE2d 519 ).
  • Carroll v. Johnson, 242 S.E.2d 296 (Ga. Ct. App. 1978).published
    Perry v. State, 139 Ga. App. 705, 706 (1) ( 229 SE2d 519 ). 3.
Retrieving the full opinion text from the archive…
Perry
v.
the State
52697.
Court of Appeals of Georgia.
Sep 29, 1976.
Published opinion
229 S.E.2d 519
1976 Ga. App. LEXIS 1959
Thomas F. Jarriel, for appellant., Fred M. Hasty, District Attorney, Walker P. Johnson, Jr., Assistant District Attorney, for appellee.
Marshall, McMurray, Smith.
Cited by 5 opinions  |  Published
Smith, Judge.

The defendant was indicted on two counts for violation of the Georgia Controlled Substances Act. Count 1 charged possession of marijuana with intent to distribute; Count 2 charged possession of more than one ounce of marijuana. Count 2 was dismissed before the case was submitted to the jury. The defendant was found guilty of possessing marijuana with intent to distribute. He appeals the judgment of conviction.

1. Appellant urges error in the court’s allowing the state to introduce into evidence marijuana which was allegedly seized pursuant to an invalid search warrant.[*706] The evidence of which appellant complains related solely to Count 2 of the indictment; this charge was dismissed prior to the submission of the case to the jury. The trial judge instructed the jury in pertinent part as follows: "The State, in open court, has abandoned and moved to dismiss Count Two of this indictment, charging the defendant with violation of the Georgia Controlled Substances Act by possession of more than one ounce of marijuana on January 21, 1976, in this County, and the Court has granted the motion and dismissed Count Two of this indictment; therefore, you will give no further consideration to the offense charged in said Count Two and you will not consider any of the evidence relating to said Count Two, in reaching your determination as to the guilt or innocence of the defendant on Count One of said indictment.”

Assuming that the evidence was erroneously admitted into evidence, the error was rendered harmless by the court’s removing the evidence from the jury’s consideration and instructing the jury not to consider it during their deliberations.

2. Appellant urges error in the following portion of the court’s charge to the jury: "A reasonable doubt is just what the term implies. It is a doubt based on reason. It is not a fancy, or a conjecture, or a supposition that the defendant might be innocent. . .” (Emphasis supplied.) Appellant contends that by including the italicized portion of the above charge, the court made a direct implication of probable guilt.

Although we do not approve of the reference to the innocence of the defendant in the portion of the charge complained of, we find no harmful error in the charge considered as a whole. The following was charged after the language of which appellant complained. "The defendant enters upon his trial with the presumption of innocence in his favor and this presumption remains with him throughout the trial unless and until it is overcome by evidence sufficiently strong to satisfy you of his guilt to a reasonable and moral certainty and beyond a reasonable doubt.” The charge as a whole made it clear that the defendant was presumed innocent. The charge to the jury must be taken as a whole and each part thereof[*707] considered in connection with every other part of the charge. Hightower v. State, 135 Ga. App. 275, 277 (217 SE2d 636). We find no reversible error in the court’s charge to the jury.

Submitted September 9, 1976 Decided September 29, 1976. Thomas F. Jarriel, for appellant. Fred M. Hasty, District Attorney, Walker P. Johnson, Jr., Assistant District Attorney, for appellee.

3. The remaining enumerations of error are without merit.

Judgment affirmed.

Marshall and McMurray, JJ., concur.