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Docket Number

27300.

Attorney(S)

Mobley F. Childs, for appellant. Lewis R. Slaton, District Attorney, Morris H. Rosenberg, Joel M. Feldman, Carter Goode, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, William F. Bartee, Jr., Assistant Attorneys General, for appellee.

Judges

MOBLEY, Chief Justice.

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Smart Summary

Ezzard v. The State (Supreme Court of Georgia) — Summary of Opinion

Factual and Procedural Background

The appellant was convicted in Fulton Superior Court of robbery by intimidation and robbery by use of a pistol (felony counts) and of two misdemeanors: carrying a concealed pistol and carrying a pistol without a license. The appellant's motion for a new trial on the general grounds was denied. He gave notice of appeal from his convictions and sentences and from the denial of his motion for new trial.

The record reflects that, at trial, a witness who was the principal of the high school the appellant attended was questioned about school records showing whether the appellant was at school at a certain time on the morning of the robbery. The appellant's counsel cross-examined that witness, and the trial judge asked questions of the witness during cross-examination. The trial included both the felony and the misdemeanor charges arising from the same incident. The defendant made an unsworn statement at trial while represented by competent counsel.

Legal Issues Presented

Whether the appellant's general-ground motion for new trial (and denial thereof) is preserved for review.
Whether the trial judge erred by asking questions of a defense witness in a manner that expressed or intimated the court's opinion in violation of Code § 81-1104.
Whether the court erroneously placed upon the appellant the burden of proof or forced him to present inconsistent defenses on the two misdemeanor counts (carrying without license and carrying concealed).
Whether the court erred by failing to advise the defendant of his right to counsel and to present evidence where the defendant made an unsworn statement.
Whether the trial court erred in failing to instruct the jury that intent is a substantial element of robbery.
Whether the court erred in failing to instruct the jury that it could recommend misdemeanor punishment on conviction of the felony charged (robbery by use of an offensive weapon).

Arguments of the Parties

Appellant's Arguments

The denial of the motion for new trial constituted error (enumeration 1).
The trial judge improperly injected his opinion into the trial by asking questions of the appellant's witness, in violation of Code § 81-1104 (enumeration 2).
The appellant was improperly required to bear the burden of proof and forced into presenting inconsistent defenses on the misdemeanor charges (enumeration 3).
The court failed to advise the defendant that he had the right to counsel and to present evidence when he made an unsworn statement (enumeration 4).
The court failed to instruct the jury that intent is a substantial element of robbery (enumeration 5).
The court failed to instruct the jury that they could recommend misdemeanor punishment (enumeration 6).

Appellee's (State's) Position as Reflected in the Opinion

The appellant abandoned the challenge to the denial of the general-ground new trial by failing to argue it or cite authority on appeal.
The appellant's failure to object at trial to the judge's questions (or to move for a mistrial) estops him from raising the claim on appeal; the judge's questions did not appear to be harmful error.
The State bore the burden to prove the misdemeanor elements (that the appellant carried a pistol outside his home and not in an open, fully exposed manner), and the appellant had the defensive privilege to show he had a license to carry.
The defendant had competent counsel and voluntarily made an unsworn statement; under controlling precedent the court was not required to advise him of the right to counsel or the right to present evidence in the circumstances.
The trial court's instruction, which followed the language of Code Ann. § 26-1902, sufficiently informed the jury of the element of intent; no additional instruction was required absent a request.
Although earlier case law had required advising the jury it could recommend misdemeanor punishment for robbery by an offensive weapon, a 1968 statute (Code Ann. § 26-3101) displaced the earlier provision (Code Ann. § 27-2501). Because the offense here is punishable by more than ten years' imprisonment, the court did not err in failing to instruct on a jury recommendation of misdemeanor punishment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Williamson v. State, 217 Ga. 162, 121 S.E.2d 782	Failure to object at trial estops a party from raising the objection on appeal (trial estoppel).	Applied to hold appellant's failure to object to the judge's questioning or move for mistrial precluded appellate review of that claim.
Grimsley v. State, 225 Ga. 567, 170 S.E.2d 238	Same principle as Williamson regarding estoppel by failure to object at trial.	Applied with Williamson to conclude the appellant was estopped from raising the judge-questioning contention on appeal.
Reed v. State, 195 Ga. 842, 25 S.E.2d 692	Defendant in defense may show he had a license to carry a pistol (as a defense to carrying offenses).	Relied upon to support the proposition that the appellant had the privilege of showing he had a license to carry the pistol.
Blocker v. State, 12 Ga. App. 81, 76 S.E. 784	Supports that a defendant may defend carrying pistol charges by showing a license.	Included among authorities to show the defensive privilege to prove a license to carry.
Brown v. State, 15 Ga. App. 484, 83 S.E. 890	Supports the availability of a license defense to carrying-pistol charges.	Used with other cases to demonstrate defensive privilege to show a license.
Elkins v. State, 17 Ga. App. 479, 87 S.E. 713	Same subject: license as defense to carrying-pistol offenses.	Relied on as supporting authority for the defendant's privilege to show a license.
Webb v. State, 18 Ga. App. 44, 88 S.E. 751	Same subject: license defense in carrying-pistol prosecutions.	Included among authorities supporting the defendant's ability to show a license.
Fanning v. State, 39 Ga. App. 531, 147 S.E. 788	Same subject: defendant may show license to carry as a defense to carrying charges.	Relied upon as additional authority for the license-as-defense principle.
Abrams v. State, 223 Ga. 216, 154 S.E.2d 443	It is not error for the court to fail to advise a defendant of right to counsel and to present evidence where the defendant had competent counsel and voluntarily made an unsworn statement.	Deemed controlling and used to reject the appellant's contention that the court should have advised him of those rights before his unsworn statement.
Hensley v. State, 228 Ga. 501, 186 S.E.2d 729	Charging the jury in the language of Code Ann. § 26-1902 (which includes "with intent to commit theft") sufficiently informs the jury of the necessity to find criminal intent without further elaboration, absent a request.	Applied to hold the court did not err in failing to give a separate or additional instruction on intent for robbery.
Rutherford v. State, 183 Ga. 301, 188 S.E. 442	Earlier rulings that a charge using the language of the former Code section defining robbery was insufficient to inform the jury of all essential elements.	Referenced and distinguished: those earlier rulings do not apply to instructions using the new Code Ann. § 26-1902 language that expressly includes intent.
Nelson v. State, 203 Ga. 330, 46 S.E.2d 488	Earlier case holding that a former statutory definition did not sufficiently inform the jury of essential elements (including intent).	Referenced and distinguished for the same reason as Rutherford: the new statute's language renders those earlier cases inapplicable to the present instruction.
Moody v. State, 216 Ga. 192, 115 S.E.2d 526	Held it was error not to charge the jury they were authorized to recommend misdemeanor punishment where accused was charged with robbery by use of an offensive weapon (under earlier law).	Not applied as controlling here because the legislature later enacted Code Ann. § 26-3101, which conflicts with the older provision and was held to repeal the conflicting portions of § 27-2501 by implication; therefore Moody was not controlling on that point in this case.

Court's Reasoning and Analysis

The court addressed each enumeration of error in turn:

On the general-ground motion for new trial, the court noted the appellant failed to argue that enumerated error or cite authority in support, and therefore treated it as abandoned.
As to the judge's questioning of a defense witness (the high school principal), the court acknowledged the prohibition in Code § 81-1104 against a judge expressing or intimating his opinion. The court observed that although the trial judge did ask questions, the record did not indicate harmful error from those questions. More importantly, because the appellant did not object at trial or move for a mistrial, the appellant was estopped from raising the issue on appeal; the court relied on Williamson and Grimsley as authority for that estoppel principle.
Regarding the contention that the appellant was forced to carry the burden of proof on the two misdemeanor pistol charges and to present inconsistent defenses, the court explained that the State had the burden to prove the misdemeanor elements (that the appellant carried a pistol outside his home not openly exposed) and that the appellant could, in defense, attempt to show he had a license to carry. The court cited a line of cases (Reed; Blocker; Brown; Elkins; Webb; Fanning) supporting the proposition that showing a license is a proper defense. The court further explained that the prosecution was required to try all charges arising from the same incident together (absent a judge's order to the contrary), and that a successful defense to the armed robbery charge would necessarily dispose of the lesser charges. The possibility that asserting the license defense to the misdemeanors might prejudice the felony defense was not a right the appellant could complain of.
On the issue of advising the defendant of the right to counsel and to present evidence before making an unsworn statement, the court invoked Abrams: where a defendant has competent counsel and voluntarily makes an unsworn statement, the court is not required to give such advice; that precedent was controlling and dispositive against appellant's claim.
Concerning the failure to instruct on intent as an essential element of robbery, the court relied on Hensley to hold that a jury instruction using the language of Code Ann. § 26-1902 (which includes the phrase "with intent to commit theft") adequately informed the jury of the necessity of finding criminal intent. The court also distinguished earlier cases (e.g., Rutherford and Nelson) that had criticized prior statutory language; because the new statute expressly includes intent, those earlier rulings did not control.
Finally, on the failure to instruct the jury it could recommend misdemeanor punishment, the court recognized that Moody had held such an instruction necessary under earlier law for robbery by use of an offensive weapon. The court explained, however, that the legislature enacted Code Ann. § 26-3101 (effective July 1, 1969), which permits a jury to recommend misdemeanor punishment only when the felony is punishable by a maximum term of ten years or less, and that the statute contained a general repeal-by-implication clause for conflicting laws. Because robbery by use of an offensive weapon is punishable by a maximum term exceeding ten years under the current statutory scheme, Code Ann. § 26-3101 conflicted with and effectively repealed the relevant portions of § 27-2501; accordingly, the court concluded the trial court did not err in failing to charge the jury on recommending misdemeanor punishment.

Holding and Implications

Judgment affirmed. All justices concurred.

Implications and direct consequences:

The appellant's convictions and sentences for the felony robberies and the two misdemeanors were affirmed, and the denial of his motion for new trial was not disturbed.
The appellate court applied established procedural rules (failure to object at trial generally precludes raising the issue on appeal) and substantive statutory interpretation (the 1968 enactment of Code Ann. § 26-3101 superseded conflicting language in § 27-2501) to resolve the contested jury instruction issue concerning recommendation of misdemeanor punishment. As applied here, because the offense carries a maximum term exceeding ten years, the jury was not required to be instructed it could recommend misdemeanor punishment.
The court did not purport to announce a broader new rule beyond its application of existing authorities and the controlling statutory language; the decision affirms the convictions on the record and under the statutes and precedents cited.

This summary is drawn exclusively from the text of the provided opinion and does not add or infer facts or legal holdings beyond those contained therein.

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EZZARD v. THE STATE.

MOBLEY, Chief Justice.

The appellant was convicted of the offenses of robbery by intimidation and by use of a pistol, and two misdemeanors, carrying a concealed pistol and carrying a pistol without a license. His motion for new trial on the general grounds was denied. He filed notice of appeal from his conviction and sentence and from the denial of his motion for new trial.

1. The appellant having failed to argue his enumerated error complaining of the denial of his motion for new trial, or to support it with citation of authority, it is considered abandoned.

2. Enumeration 2 alleges that the court erred in injecting its opinion into the trial by questions to a witness of the appellant in violation of Code § 81-1104, which prohibits the judge from expressing or intimating his opinion as to what has or has not been proved. The witness was principal of the high school the appellant attended. He was questioned by the appellant's counsel as to what his records showed as to whether the appellant was at school at a certain time on the morning of the robbery. The trial court during the cross examination of the witness did ask questions of him. While it does not appear that the court committed harmful error in asking the questions, the failure of the appellant to object to the questions or to move for a mistrial at the trial estopped him from raising an objection on appeal. Williamson v. State, 217 Ga. 162 (1) ( 121 S.E.2d 782); Grimsley v. State, 225 Ga. 567 (2) ( 170 S.E.2d 238), and cases cited. This enumerated error is without merit.

3. Enumeration 3 alleges that the court erred in making the appellant carry the burden of proof and present inconsistent theories of defense regarding two misdemeanor charges of carrying a pistol without a license and carrying a concealed pistol.

There is no merit in the appellant's contention that he was required to carry the burden of proof on the two misdemeanor charges. The State had the burden to show, and did show, that the appellant carried a pistol on his person, outside his home, not "in an open manner and fully exposed to view." Code Ann. § 26-2901 (Ga. L. 1968, pp. 1249, 1323). The appellant in defense had the privilege of showing that he had a license to carry the pistol. See Reed v. State, 195 Ga. 842, 850 ( 25 S.E.2d 692); Blocker v. State, 12 Ga. App. 81 (3) ( 76 S.E. 784); Brown v. State, 15 Ga. App. 484 ( 83 S.E. 890); Elkins v. State, 17 Ga. App. 479 ( 87 S.E. 713); Webb v. State, 18 Ga. App. 44 ( 88 S.E. 751); Fanning v. State, 39 Ga. App. 531, 532 ( 147 S.E. 788).

The prosecution was required to try all of the charges in one trial, unless the judge ordered them to be tried separately. Code Ann. § 26-506 (b, c) (Ga. L. 1968, pp. 1249-1267). The State's evidence on the armed robbery charge and the misdemeanor charges involved the same incident. A successful defense to the main charge of armed robbery would dispose of the lesser charges. The fact that a defense to the lesser charges by proof that the appellant had a license to carry a pistol, and was not carrying a pistol in a concealed manner on the occasion charged, might prejudice his defense to the felony charge, is not a matter of which he has a right to complain.

4. "It was not error for the court to fail to advise the defendant that he had the right to counsel and to present evidence in his behalf, where he had competent counsel and the defendant voluntarily made an unsworn statement." Abrams v. State, 223 Ga. 216 (5) ( 154 S.E.2d 443). The foregoing ruling is controlling, adversely to the appellant's contention in enumeration 4.

5. The fifth enumeration of error alleges that the court erred in failing to instruct the jury that intent is a substantial element in the crime of robbery. This court in Hensley v. State, 228 Ga. 501 (3) ( 186 S.E.2d 729), held adversely to the appellant's contention on this identical question, when we ruled that: "The trial court did not err, certainly, in the absence of a request therefor, to charge in any other language than that used with respect to the necessity that they find that the defendant possessed a criminal intent before they would be authorized to convict. The court instructed the jury by defining armed robbery in the language of § 26-1902 of the Criminal Code of Georgia. This section includes the language, `with intent to commit theft,' not embodied in the former Code section defining robbery and, therefore, the rulings of this court in cases such as Rutherford v. State, 183 Ga. 301 (2) ( 188 S.E. 442), and Nelson v. State, 203 Ga. 330 (3) ( 46 S.E.2d 488) to the effect that a charge defining armed robbery in the language of former Code § 26-2501 was not a sufficient definition of robbery to inform the jury of all the essential elements of the offense cannot be applied to instructions in the language of the new Code Ann. § 26-1902..." This enumerated error is without merit.

6. The sixth enumeration of error alleges that the court erred in failing to charge the jury that it was within their power, in case of conviction, to recommend misdemeanor punishment. The appellant contends that robbery by use of an offensive weapon is not one of the felonies excepted from the provisions of Code Ann. § 27-2501 (Ga. L. 1939, pp. 285, 287), authorizing the jury to recommend misdemeanor punishment in all felonies except those specified therein, and relies on Moody v. State, 216 Ga. 192 (3) ( 115 S.E.2d 526), holding that it was error not to charge the jury that they were authorized to recommend misdemeanor punishment where the accused was charged with robbery by the use of an offensive weapon.

Code Ann. § 27-2501 and Moody v. State, 216 Ga. 192 (3), supra, would be controlling against the State's position in the present case except for the fact that the legislature enacted Code Ann. § 26-3101 (Ga. L. 1968, pp. 1249, 1334), effective July 1, 1969, which repealed by implication those provisions of § 27-2501 that are in conflict with it. Georgia Laws 1968, pp. 1249, 1351, § 5, provides that "all laws and parts of laws in conflict with this act are hereby repealed." Code Ann. § 26-3101 (Ga. L. 1968, pp. 1249, 1334) provides that: "When a defendant is found guilty of a felony punishable by imprisonment for a maximum term of 10 years or less, the jury that determines the sentence may recommend that the defendant be punished as for a misdemeanor. The judge may, in his discretion, follow the recommendation of the jury." Code Ann. § 27-2501 is clearly in conflict with Code Ann. § 26-3101, and by implication is repealed. Since robbery by the use of an offensive weapon is an offense punishable by imprisonment for a maximum term exceeding ten years ( Code Ann. § 26-1902; Ga. L. 1968, pp. 1249, 1298; Ga. L. 1969, p. 810), the court did not err in failing to charge that the jury could recommend misdemeanor punishment.

Judgment affirmed. All the Justices concur.