WHITE v. THE STATE., 243 Ga. 250, 253 S.E.2.d 694
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Certiorari to the Court of Appeals of Georgia -- 146 Ga. App. 810 (247 SE2d 536) (1978)., Judgment affirmed. All the Justices Concur, except Bowles, J., who concurs in the judgment only, and Jordan and Hill, JJ., who dissent.
Summary
Certiorari to the Court of Appeals of Georgia -- 146 Ga. App. 810 (247 SE2d 536) (1978)., Judgment affirmed. All the Justices Concur, except Bowles, J., who concurs in the judgment only, and Jordan and Hill, JJ., who dissent.
Text
Milam, Smith, Nash & San Filippo, Ronald C. San Filippo, Frank G. Smith, for appellant.
Dr. White was convicted of prescribing controlled substances for other than legitimate purposes in violation of the Georgia Controlled Substances Act. Two agents of the Georgia Bureau of Investigation, posing as patients, visited Dr. White's office and demanded that he give them prescriptions for drugs. The doctor claims that he issued the prescriptions because he feared the "patients."
On appeal to the Court of Appeals, Dr. White enumerated error on the trial court's omission to give an instruction on duress though he neither requested such a charge nor objected to the omission when asked by the court if there were any objections.
The Court of Appeals, citing Hill v. State,
We granted certiorari on this one issue.
Failure to request a charge on a collateral issue or failure to object to an omission to charge have precluded appellate review of the issue, but failure to object to the charges given has fallen within Code Ann. 70-207 (a). Stonaker v. State,
The record in this case shows that at the conclusion of the court's charge a juror asked the court to explain the "legal implication of duress," to which the court replied, "A charge on duress would not be authorized in this case. Duress is not an excuse for a crime if that answers your question." Immediately following, the court inquired whether there was any objection, and defendant's counsel raised none applicable to the treatment of duress. In our opinion this does not amount to induced error under Edwards and Hill. However, we do hold that the appellant has waived his right to enumerate error by failing to respond to the court's inquiry on any objections to the charge. Sims v. State,
JORDAN, Justice, dissenting.
I dissent to the majority opinion for the reasons stated by Justice Gunter in his dissent in Hill v. State,
The 1968 amendment to the Appellate Practice Act (Ga. L. 1968, pp. 1072, 1078) clearly expresses the legislative intent that defendants in criminal cases are excluded from the requirement of objecting to an allegedly erroneous charge or omission to charge in order to preserve that issue on appeal. I think this court is bound by that pronouncement until a contrary expression is made by the legislature.
I agree that a defendant can waive this benefit in the same manner as other rights might be waived. But the record should show an affirmative, clear and intelligent waiver, of this important right given to him under the law.
Such is not shown by the record in this case and the Court of Appeals erred in so holding.
I respectfully dissent.
HILL, Justice, dissenting.
I believe the law was stated correctly in Sims v. State,
1978
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This document cites
- Supreme Court of Georgia - HILL et al. v. THE STATE., 237 Ga. 523, 228 S.E.2.d 898 (1976)
- Supreme Court of Georgia - THE STATE v. STONAKER., 236 Ga. 1, 222 S.E.2.d 354
- Supreme Court of Georgia - EDWARDS v. THE STATE., 235 Ga. 603, 221 S.E.2.d 28
- Supreme Court of Georgia - SIMS v. THE STATE., 234 Ga. 177, 214 S.E.2.d 902 (1975)
- Supreme Court of Georgia - GAITHER v. THE STATE., 234 Ga. 465, 216 S.E.2.d 324 (1975)
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