Full title: ALLANSON v. THE STATE
Court: Supreme Court of Georgia
Date published: Oct 28, 1975
Facts
Five days before the victims’ being murdered by shotgun blasts at close range, they had been in Forsyth County, Georgia, some 50 miles from their home, where approximately nine shots from a .22 caliber weapon had been fired into their automobile. Testimony was adduced which would authorize a finding that someone had cut tree limbs to create a blind to conceal the identity of the person shooting the .22 caliber weapon. One witness testified as having seen the defendant’s pick-up truck near such location on that day, and another witness testified as having seen a truck that resembled the truck identified as being owned by the defendant. The first enumeration of error complains of the admission of this testimony. No contention is made that testimony of a prior attack by the defendant (five days before the murder) upon the victims would not be admissible under the exceptions stated in Bacon v. State, 209 Ga. 261 ( 71 S.E.2d 615) (1952); but the contention here made is that circumstantial evidence that the defendant fired shots at the victims on such prior occasion would not authorize its admission into evidence.
Issue
Decision
The failure of counsel for the defendant to either submit a requested charge or to expressly object to the court’s direction that he should prepare such a charge was a waiver of the motion for mistrial where such instructions would have cured any harm caused by the remarks made by the state’s attorney. The decision not to submit a requested instruction, which the trial court was to give verbatim, must be construed as a trial tactic since counsel for the defendant could well have determined that no charge was preferable, insofar as the defense was concerned, to the general charge to disregard statements, comments, and arguments of counsel to each other. This enumeration of errors is without merit.
The sixth enumeration of error complains that the trial court erred in refusing to give four requested charges dealing with eyewitness testimony. Each of these requested charges warned the jury of the possible dangers of mistaken identification of an accused. In this case, as in Young v. State, 226 Ga. 553, 557 ( 176 S.E.2d 52) (1970), the trial court stressed the necessity that the offense charged must be proved beyond a reasonable doubt, and it was not error to refuse to give the requested instructions. See also Micheli v. State, 222 Ga. 361 ( 149 S.E.2d 803) (1966); and Knight v. State, 133 Ga. App. 808 (3) ( 212 S.E.2d 464) (1975). This enumeration of errors is without merit.
The last enumeration of error contends that the evidence did not authorize the verdict. The evidence in this case, though circumstantial, amply authorized the verdict and the trial court did not err in overruling the motion for a new trial on this ground.
Judgment affirmed. All the Justices concur.