Gaither v. State, 216 S.E.2d 324 (Ga. 1975). · Go Syfert
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Gaither v. State, 216 S.E.2d 324 (Ga. 1975). Cases Citing This Book View Copy Cite
109 citation events (10 in the last 25 years) across 3 distinct courts.
Strongest positive: Hobbs v. State (gactapp, 2009-06-30)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 11 distinct citers.
cited Cited as authority (rule) Hobbs v. State
Ga. Ct. App. · 2009 · confidence medium
Gaither v. State, 234 Ga. 465, 466 (2) ( 216 SE2d 324 ) (1975).
discussed Cited as authority (rule) Moon v. State
Ga. Ct. App. · 2000 · confidence medium
Here, it is argued only that, since trial counsel is authorized to reserve his challenges to a jury charge until making a motion for new trial or appeal, pursuant to, e.g., Gaither v. State, 234 Ga. 465, 466 (2) ( 216 SE2d 324 ) (1975), it is per se ineffective assistance of counsel not to do so.
discussed Cited as authority (rule) Towns v. State
Ga. · 1990 · confidence medium
Moreover, we note that when asked if there were any objections to the charge given, counsel for the defendant replied, “Nothing for the defense at this time, your Honor.” Although we have not previously addressed whether such a response is adequate to reserve objections to a later time, we agree with the Court of Appeals that “the mere insertion of the caveat ‘at this time’ is a far cry from a reservation of objections to a later time, a standard set forth in Gaither v. State, 234 Ga. 465, 466 ( 216 SE2d 324 ) [1975].” Butler v. State, 173 Ga. App. 168, 169 ( 325 SE2d 835 ) (1984).
examined Cited as authority (rule) Butler v. State (4×)
Ga. Ct. App. · 1984 · confidence medium
In the first place, the mere insertion of the caveat “at this time” is a far cry from a reservation of objections to a later time, a standard set forth in Gaither v. State, 234 Ga. 465, 466 ( 216 SE2d 324 ).
discussed Cited as authority (rule) Bivins v. State
Ga. Ct. App. · 1983 · confidence medium
“The Supreme Court in White v. State, 243 Ga. 250, 251 [( 253 SE2d 694 ) (1979)], citing Gaither v. State, 234 Ga. 465, 466 [( 216 SE2d 324 ) (1975)], held that‘[w]here the trial court inquires whether there was objection and the defendant’s counsel states that he reserves the right to object in his motion for new trial or appeal, there is no waiver.’ Defendant’s counsel simply cannot ignore the court’s inquiry, else he waives his right to future objection.
discussed Cited "see" Morgan v. State (2×)
Ga. · 2012 · signal: see · confidence high
See Gaither v. State, 234 Ga. 465, 466 ( 216 SE2d 324 ) (1975).
discussed Cited "see" Sweet v. State (2×)
Ga. Ct. App. · 2010 · signal: see · confidence high
See Gaither v. State, 234 Ga. 465, 466 (2) ( 216 SE2d 324 ) (1975); OCGA § 5-5-24 (a). 3 See, e.g., Welch v. State, 235 Ga. 243, 245 (1) ( 219 SE2d 151 ) (1975). 4 Compare Smith v. State, 281 Ga. App. 91, 92 (1) ( 635 SE2d 385 ) (2006) (conviction for robbery by sudden snatching reversed where victim’s first indication of robbery was uneasy feeling in seeing defendant run away after robbery); Grant v. State, 226 Ga. App. 506, 507 ( 486 SE2d 717 ) (1997) (conviction reversed where evidence showed that victims were unaware of the robbery until the defendants left the store and the crime was c…
discussed Cited "see" Leach v. State (2×)
Ga. · 1975 · signal: see · confidence high
See my dissenting opinions in Sims v. State, 234 Ga. 177 , and Gaither v. State, 234 Ga. 465 .
discussed Cited "see, e.g." Mullen v. State (2×)
Ga. Ct. App. · 1990 · signal: compare · confidence medium
See Ross v. State, 173 Ga. App. 313, 314 (4) ( 325 SE2d 919 ) (1985); compare Gaither v. State, 234 Ga. 465, 466 (2) ( 216 SE2d 324 ) (1975). (b) The judge also informed the jurors that on the back of the indictment was “a blank: ‘We, the jury, find the defendant [blank].’ Whatever your verdict is, write it in there. . . .” We disagree with appellant that the reference to one blank in any way suggested to the jury that the only possible finding was a one-word verdict of “guilty,” especially given that the judge instructed them to write in their verdict, “whatever [it] is.” Judg…
discussed Cited "see, e.g." Drake v. State (2×)
Ga. Ct. App. · 1984 · signal: compare · confidence low
Compare Gaither v. State, 234 Ga. 465 ( 216 SE2d 324 ).
discussed Cited "see, e.g." Henderson v. State (2×)
Ga. Ct. App. · 1982 · signal: compare · confidence low
Compare Gaither v. State, 234 Ga. 465 (2) ( 216 SE2d 324 ) (1975); see also Caraway v. State, 72 Ga. App. 504 (2b) ( 34 SE2d 303 ) (1945). 9.
Gaither
v.
the State
29863.
Supreme Court of Georgia.
May 20, 1975.
216 S.E.2d 324
Myers, Mull & Sweet, Gale W. Mull, for appellant., Lewis R. Slaton, District Attorney, Allen Moye, Assistant District Attorney, Arthur K. Bolton, Attorney General, Lois F. Oakley, Deputy Assistant Attorney General, for appellee.
Gunter, Ingram, Hall.
Cited by 56 opinions  |  Published

Lead Opinion

Per curiam.

This is an appeal from a conviction for the offense of murder. The trial court granted a motion for new trial on the conviction for the offense of aggravated assault and overruled the motion as to the murder conviction.

While in conflict, there is evidence to show that the defendant went to the house of one Gary Rose, his seventeen-year-old friend. The two talked of getting some money as they drank beer and took pills, all of which were provided by defendant. They then went looking for[*466] someone to rob. Upon seeing a man walking on the sidewalk with a bag of groceries, defendant handed Rose a gun and told him to "go ahead.” Rose approached the man and asked for money. A scuffle ensued and Rose shot and killed the man. Both Rose and the defendant fled.

1. The evidence supports the verdict of guilty on the indictment for murder by malice aforethought based upon a conspiracy. Jones v. State, 220 Ga. 899 (142 SE2d 801). See also Code Ann. § 26-801.

2. The defendant enumerates error in the following charge of the court on the guilt phase of the trial: "Whatever your verdict is, ladies and gentlemen, it must be in writing, it must be dated and signed by your foreman or forewoman and returned into court. I suggest that you just open each of these indictments and write your verdict at the top of this page, because later on in the sentencing feature of the case, you will have to write the sentencing feature in the bottom part of the page. So, if you will, write them at the top of this page on each of the indictments with reference to all of these counts.” He contends that the charge expressed the opinion of the trial court to the jury that the defendant was guilty of the crimes charged.

The state contends that he waived any objection to the charge by virtue of the fact that at the conclusion of the charge the trial judge asked the defendant’s counsel if there were any objections to the charge and counsel replied, "I will reserve my objections to the charge for motion for new trial.” We disagree. "Under the Appellate Practice Act of 1965 as amended (Ga. L. 1965, p. 18; 1968, p. 1072,1078), an appellant in a criminal case may appeal and enumerate error on an erroneous charge or on erroneous failure to charge without first raising the issue in the trial court. Spear v. State, 230 Ga. 74 (195 SE2d 397). The benefits of this rule are not deemed waived by defendant even where his counsel states to the trial judge that he has no objection to the charge of the court.” Sims v. State, 234 Ga. 177, 178.

It is error for a trial judge "to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused.” Code § 81-1104. See Nixon v. State, 14 Ga. App. 261, 263 (80 SE 513). A new trial is mandatory. Neal v. State, 217 Ga. 545 (123 SE2d 760).

[*467] Submitted April 21, 1975 Decided May 20, 1975. Myers, Mull & Sweet, Gale W. Mull, for appellant. Lewis R. Slaton, District Attorney, Allen Moye, Assistant District Attorney, Arthur K. Bolton, Attorney General, Lois F. Oakley, Deputy Assistant Attorney General, for appellee.

Judgment reversed.

All the Justices concur in Division 1, except Gunter and Ingram, JJ. All the Justices concur in Division 2, except Hall, J., who dissents from Division 2 and the judgment of reversal.

Dissent

Hall, Justice,

dissenting.

I dissent for the same reasons stated in my dissent in Sims v. State, 234 Ga. 177.

This court has held that the right of counsel for an accused includes the right to effective counsel. Pitts v. Glass, 231 Ga. 638 (203 SE2d 515); McAuliffe v. Rutledge, 231 Ga. 1, 3 (200 SE2d 100). Under the mandate of this court in Sims, supra, the most effective counsel is one who plays fast and loose with the trial court. It is no longer the policy of this court that "A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221).

The result in Sims, supra, and this case, tends to allow the criminal justice system to be held in contempt by the public.