Shelly v. State, 131 S.E.2d 135 (Ga. Ct. App. 1963). · Go Syfert
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Shelly v. State, 131 S.E.2d 135 (Ga. Ct. App. 1963). Cases Citing This Book View Copy Cite
37 citation events (6 in the last 25 years) across 3 distinct courts.
Strongest positive: Timothy Sutton v. State (gactapp, 2017-06-08)
Treatment trajectory · 1966 → 2026 · click a year to view as-of
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Top citers, strongest first. 5 distinct citers.
discussed Cited as authority (rule) Timothy Sutton v. State
Ga. Ct. App. · 2017 · confidence medium
He further contends that when “certain legal offenses” are elements of the charged crime, a trial court errs in failing to provide the jury with legal definitions of the “elemental crimes.” In support of this argument, he refers us to cases in which the trial court failed to charge the jury on the legal definition of a crime that was a “material element” of the charged offense.18 But his reliance on those cases is misplaced because we have expressly held “that possession of burglary tools and burglary are separate and distinct offenses and conviction of one 16 Id.; accord Lake v.…
discussed Cited as authority (rule) Sutton v. the State
Ga. Ct. App. · 2016 · confidence medium
Such plain error may be considered on appeal even if it was not brought to the [trial] court’s attention as provided in subsection (a) of this Code section.”). 15 Smith v. State, 292 Ga. 316, 319 (3) ( 737 SE2d 677 ) (2013). 16 Id.; accord Lake v. State, 293 Ga. 56, 59 (5) ( 743 SE2d 414 ) (2013). 17 Lake, 293 Ga. at 59 (5). 18 See Essuon v. State, 286 Ga. App. 869, 872 (2) ( 650 SE2d 409 ) (2007) (holding that the trial court committed reversible error when it failed to charge the jury on the legal elements of “felony” and “murder” when both were elements of the charged offense—…
discussed Cited as authority (rule) Kain v. State
Ga. Ct. App. · 2007 · confidence medium
Johnson, P. J., and Mikell, J., concur. 1 Reyes v. State, 242 Ga. App. 170, 172 (1) ( 529 SE2d 192 ) (2000) (citations and punctuation omitted). 2 Id. 3 280 Ga. 822 -823 (1) ( 633 SE2d 541 ) (2006). 4 Jackson v. State, 276 Ga. 408, 411-412 (2) ( 577 SE2d 570 ) (2003) (citations and punctuation omitted). 5 Ga. L. 2004, p. 57, § 3. 6 Ga. L. 2004, p. 57, § 2. 7 Palmer v. State, 282 Ga. App. 366 -367 ( 638 SE2d 797 ) (2006) (punctuation and footnote omitted), certiorari granted by Supreme Court of Georgia on March 26, 2007. 8 Dunbar v. State, 209 Ga. App. 97, 98 (2) ( 432 SE2d 829 ) (1993) (cita…
discussed Cited as authority (rule) Tuggle v. State
Ga. Ct. App. · 1983 · confidence medium
See also Wofford v. State, 152 Ga. App. 739, 740 (2) ( 263 SE2d 707 ) (1979); Cochran v. State, 144 Ga. App. 820 (1) ( 242 SE2d 735 ) (1978); Shelly v. State, 107 Ga. App. 736, 738 (4) ( 131 SE2d 135 ) (1963).
discussed Cited "see" Duchac v. State (2×)
Tenn. · 1973 · signal: see · confidence high
See Shelley v. State, 107 Ga. App. 736 , 131 S.W.2d 135 (1963); Burch v. Commonwealth, 240 Ky. 519 , 42 S.W.2d 714 (1931).
Shelly
v.
the State
40048.
Court of Appeals of Georgia.
May 8, 1963.
131 S.E.2d 135
James B. Venable, for plaintiff in error., William T. Boyd, Solicitor General, J. Walter LeCraw, Eugene L. Tiller, Assistant Solicitors General, contra.
Jordan, Nichols, Frankum.
Cited by 19 opinions  |  Published
Jordan, Judge.

The defendant under indictment in the Superior Court of Fulton County for the offense of having in his possession in Fulton County on December 11, 1961, certain described burglary tools with the intent to use them in committing burglary and larceny, filed a plea of autrefois convict in which he alleged that he had been tried and convicted in the Superior Court of DeKalb County for the offense of burglary committed on December 11, 1961, in DeKalb County, and contended that said conviction was a bar to the present indictment for possessing burglary tools. This plea was dismissed on motion of the State and the defendant was tried and convicted. His amended motion for new trial was denied and the exception is to that judgment and to the order of the[*737] trial court dismissing his plea of autrefois convict. Held:

1. The offense of possessing burglary tools is not a necessary element in, and does not constitute an essential part of, the offense of burglary. The two offenses are separate and distinct and a person being prosecuted for either is in no jeopardy of being convicted of the other, or of being convicted of an offense which is an essential part of the other. Therefore, the conviction of the accused upon the indictment for burglary could not support a plea of autrefois convict to the indictment for possessing burglary tools; and the trial court did not err in sustaining the State’s motion to dismiss the plea. See Bell v. State, 103 Ga. 397, 402 (30 SE 294, 68 ASR 102); Smith v. State, 105 Ga. 724 (32 SE 127); Pat v. State, 116 Ga. 92 (42 SE 389); Blair v. State, 81 Ga. 629 (7 SE 855).

2. “A ground of a motion for new trial complaining of the admission of evidence which was admitted by the court conditionally or provisionally is not valid where it does not appear in the ground that the objection was renewed. Failure to renew the objection amounts to a waiver.” Trammell v. Shirley, 38 Ga. App. 710, 721 (145 SE 486). The trial court having admitted the evidence complained of in special ground 1 conditionally, subject to its being connected by the State, and the defendant having failed to renew his objection to said evidence, this ground is without merit.

3. Intent is one of the essential elements of the crime charged in an indictment for possessing burglary tools as defined in Code '§ 26-2701 with intent to use them in the commission of a crime, and evidence relating to other similar transactions is admissible to prove intent. Randall v. State, 59 Ga. App. 749 (2 SE2d 163); Murphy v. State, 64 Ga. App. 690 (2) (13 SE2d 870). “Intent, being a secret operation of the mind, can be ascertained only by acts and representations of the party. On the trial of one accused of possessing burglary tools with intent to commit a crime therewith, it was not error to allow evidence that the defendant had sometimes previously used similar tools in the commission of other burglaries.” Farlow v. State, 59 Ga. App. 881 (2 SE2d 500). Under the rulings of this court in the cases cited above the trial court did not err in allowing evidence relating to the commission of a burglary by the defendant to be introduced by the State for the purpose of proving intent on the part of the[*738] defendant; and special grounds 5, 6, 7, 8 and 9 are without merit.

Decided May 8, 1963. James B. Venable, for plaintiff in error. William T. Boyd, Solicitor General, J. Walter LeCraw, Eugene L. Tiller, Assistant Solicitors General, contra.

4. The remaining special ground assigns error on the refusal of the trial court to grant a mistrial because of remarks made by the assistant solicitor general during his argument to the jury, the remarks complained of being to the effect that the defendant had been arrested before he had an “opportunity” to commit another burglary. Conceding that such argument was framed in improper language, the trial judge upon objection of counsel for the defendant instructed the assistant solicitor general to stay within the evidence in his argument, and specifically instructed and cautioned the jury to disregard the remarks complained of. Under these circumstances and in view of the fact that the matter of granting a mistrial is “largely within the discretion of the court; and unless it is apparent that a mistrial was essential to preservation of the right of fair trial, the discretion will not be interfered with” Manchester v. State, 171 Ga. 121, 132 (155 SE 11), it cannot be said that the trial court erred in refusing to grant a mistrial in this case. Johnson v. State, 209 Ga. 333 (6) (72 SE2d 291).

5. The general grounds are without merit.

Judgment affirmed.

Nichols, P. J., and Frankum, J., concur.