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Burley v. State

Court of Appeals of Georgia
Apr 19, 1985
332 S.E.2d 49 (Ga. Ct. App. 1985)

Opinion

70250.

DECIDED APRIL 19, 1985.

Aggravated assault. DeKalb Superior Court. Before Judge Henley, Senior Judge.

Elaine M. Gordon, for appellant.

Robert E. Wilson, District Attorney, Susan Brooks, Thomas S. Clegg, Assistant District Attorneys, for appellee.


The appellant was convicted of aggravated assault based on evidence that he walked into the victim's restaurant armed with a shotgun and shot the victim in the stomach. He appeals. Held:

1. The trial court did not err in giving the so-called " Allen charge," even though the jurors had been deliberating for only a little more than two hours and had not communicated to the court that they were deadlocked. Accord Goldwire v. State, 128 Ga. App. 472 (2) ( 197 S.E.2d 155) (1973); Harris v. State, 142 Ga. App. 37 (1) ( 234 S.E.2d 798) (1977); Powers v. State, 168 Ga. App. 642 (6) ( 310 S.E.2d 260) (1983). See generally Ponder v. State, 229 Ga. 720 (2) ( 194 S.E.2d 78) (1972). Furthermore, we find no impropriety either in the court's prefatory remarks to the jurors to the effect that because they had never served on a jury before they might be confused as to their responsibilities or in the court's statement that their responsibility was either to find the appellant guilty or innocent. There was no requirement that the court mention as a third option the possibility of a deadlock resulting in mistrial. See Russell v. State, 147 Ga. App. 194 (1) ( 248 S.E.2d 229) (1978).

2. The appellant contends that, through inflection of voice during compliance with the jury's request for recharge on the definitions of aggravated assault and intent, the court improperly expressed the opinion that the appellant was guilty. We are, of course, limited to consideration of the written transcript; and the written transcript reveals no indication whatsoever that the court intimated such an opinion while the jury was present. Consequently, this enumeration of error is also without merit. Accord Clenney v. State, 229 Ga. 561 (1) ( 192 S.E.2d 907) (1972).

Judgment affirmed. McMurray, P. J., and Benham, J., concur.


DECIDED APRIL 19, 1985.


Summaries of

Burley v. State

Court of Appeals of Georgia
Apr 19, 1985
332 S.E.2d 49 (Ga. Ct. App. 1985)
Case details for

Burley v. State

Case Details

Full title:BURLEY v. THE STATE

Court:Court of Appeals of Georgia

Date published: Apr 19, 1985

Citations

332 S.E.2d 49 (Ga. Ct. App. 1985)
332 S.E.2d 49