The defendant was convicted of robbery by force and was sentenced to death. He filed a motion for new trial on the general grounds and five special grounds. The motion was denied, and he excepts to that judgment and to the overruling of his demurrer to the indictment.
1. The indictment, which charged that the accused "did . . . unlawfully and with force and arms, wrongfully, fraudulently, and violently, by force, take from the person of E. C. Rhodes, without his consent, and with intent to steal the same, one hundred fifty-one . . . dollars," sufficiently charged the offense of robbery, the indictment being substantially in the language of Code 26.2501 defining said offense. "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury." Code 27-701. In Lacey v. State, 44 Ga. App. 791 (3) (163 S. E. 292), which was a case of robbery by force and intimidation, the court held: "It was not necessary for the indictment to allege how or in what manner the defendant employed force, or what constituted force and intimidation in the act alleged.' " The indictment in this case was in the language of the Code and was sufficiently plain for the nature of the offense to be easily understood by the jury, and this is sufficient. Pippin v. State, 205 Ga. 316 (4), 322 (53 S. E. 2d 482); Rutherford v. State, 183 Ga. 301 (1) (188 S. E. 442); Harris v. State, 191 Ga. 243 (6), 253 (12 S. E. 2d 64). There is no merit in the exception to the overruling of the demurrer to the indictment.
2. Ground 1 of the amended motion for new trial asserts that, after the defendant's counsel finished his argument to the jury (in which he had argued the law of circumstantial evidence), the solicitor-general, who contended that the law of circumstantial evidence did not apply to the case, asked the court to rule on whether such law was applicable. The court replied, "I will get to that, Mr. Solicitor," and immediately began his charge to the jury, completing the charge with this statement: "The solicitor-general has asked for a ruling by the court as to a specific matter in this case, and that is with reference to circumstantial evidence. The court is not giving you as applicable to this case the rule of circumstantial evidence." The defendant contends that the effect of this statement to the jury was to instruct them that all the evidence introduced in the case was direct evidence as distinguished from circumstantial evidence; and circumstantial evidence having been admitted into the case, it was incumbent upon the court to instruct the jury to consider only the direct evidence or else to charge the law of circumstantial evidence.
It is not error to fail to charge the law of circumstantial evidence in the absence of a request, when there is direct evidence in a case (Jones v. State, 210 Ga. 94 (7)
, 78 S. E. 2d 18; Wise v. State, 209 Ga. 115 (1)
, 70 S. E. 2d 598; Green v. State, 210 Ga. 745 (2)
, 82 S. E. 2d 703); but when direct and circumstantial evidence is introduced in a criminal case, it is the better practice to charge the law contained in Code 38-109. There was direct evidence in this case. The victim identified the defendant as the one who had made the attack upon him. The victim had been knocked unconscious and was not able to testify as to who took his wallet and money; but the defendant supplied this fact with a confession, and a confession is direct evidence. Richardson v. State, 207 Ga. 373 (1)
(61 S. E. 2d 489); Downs v. State, 208 Ga. 619 (1)
(68 S. E. 2d 568); Booker v. State, 210 Ga. 34
(2, 3) (77 S. E. 2d 505).
3. Special grounds 2, 3, and 4 each contains an excerpt from the charge of the court, and each assigns as error the failure of the court to charge in connection therewith some other principle of law. A correct charge of the court is not made erroneous by the failure to charge some other principle of law. These grounds are without merit. Green v. State, 150 Ga. 121 (1) (102 S. E. 813); Jester v. State, 193 Ga. 202 (2) (17 S. E. 2d 736); Napper v. State, 200 Ga. 626 (2) (38 S. E. 2d 269).
4. Ground 5 attacks the entire charge of the court as not correctly, completely, and adequately instructing the jury on the law of the case; and upon the further ground that the charge fails to include certain principles of law. While it would have been the better practice for the court to have charged fully on the principles of law which are alleged to have been omitted, especially where, as here, the defendant was accused of a capital felony, the contention that the charge is incomplete and inadequate, without pointing out any errors in the charge as given, is too general to be considered by this court as an assignment of error (Franklin v. State, 69 Ga. 36 (11), 47 Am. R. 748); and the contention that the court failed to charge certain principles of law in connection with those principles which were charged is without merit for the reasons given in division 3 above.
5. There is no merit in the general grounds of the motion for new trial.
ON MOTION FOR REHEARING
The State has filed a motion for rehearing in this case. This court has been divided on the question of whether the State has the right to file such a motion, the majority being of the opinion that it does have such right. Glustrom v. State, 206 Ga. 734
, 740 (58 S. E. 2d 534); Henderson v. State, 209 Ga. 238
, 241 (71 S. E. 2d 628). Justice Head, in his dissenting opinion in the Glustrom case, concurred in by Presiding Justice Wyatt and Justice Almand, ably discussed the reasons in support of the position that the State's motion should be dismissed. In this State, the State in a criminal case has no right to sue out a writ of error on a judgment in favor of a defendant. State v. Jones, 7 Ga. 422
; Code 70-201. This court has also held that it is without jurisdiction to entertain at the instance of the State a petition for certiorari from a decision of the Court of Appeals in a criminal case. State v. B'Gos, 175 Ga. 627
(165 S. E. 566). The reasoning applicable to the right of the State to appeal in a criminal case and to file a petition for certiorari to this court, which was thoroughly and fully set out in the Glustrom and B'Gos cases, supra, does not in our opinion apply to a motion for rehearing on behalf of the State in a criminal case.
Thus, it being clear that there is no law expressly authorizing a rehearing, and that whether an application for rehearing will be entertained, and its disposition, are matters within the sound discretion of the court, the question then is whether this court in the exercise of its discretion should permit the State to file motions for rehearings in criminal cases.
As pointed out above, a judgment of this court granting a new trial to a defendant in a criminal case remains within the breast of the court until the remittitur has been forwarded to the clerk of the trial court, and during that time this court has the right to alter, amend, or vacate its judgment. The defendant, during that interim, has acquired no statutory or constitutional rights by reason of the judgment rendered in his favor. The question of putting him in jeopardy in violation of the constitutional provision which provides that "No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his, or her own motion for a new trial after conviction, or in case of mistrial" (Code, Ann., 2-108), is not involved. Since the court, before the remittitur goes out, may on its own motion, where it determines that it has committed error, alter, amend, or vacate its judgment, and since it is the duty of the court to do so, we see no objection to the State's calling to our attention by motion for rehearing any errors or mistakes which the State believes this court has committed.
HEAD, Justice, dissenting. I dissent from the ruling by the majority entertaining and considering the motion for rehearing filed by the State. Errors in criminal cases are not subject to revision at the instance of the State. State v. Jones, 7 Ga. 422, 424.
A rehearing in this court, at the instance of the State, is not authorized under the theory that the judgment of this court granting the defendant a new trial remains within the breast of the court until the remittitur has been sent to the trial court. It has been many times held by this court that a decision of a trial judge in civil cases is within the breast of the court and may be vacated, set aside, or revised at the term in which such judgment is rendered. If, after conviction and, upon a motion for new trial, a judgment is entered granting the defendant a new trial by a superior court judge, can that judgment properly be vacated at the term at which it is rendered, at the instance of the State? If so, why may not a trial judge at the same term reverse his judgment, at the instance of the State, sustaining an oral motion to quash an indictment? In neither instance could it properly be said that the defendant was the movant, since a judgment favorable to his contentions would have previously been entered. Neither the Constitution nor the statutes of this State authorize any appeal, reconsideration, or review in any criminal case in any court at the instance of the State. The writer knows of no instance wherein a judgment of this court granting a defendant a new trial in a capital case has ever been vacated and a contrary judgment entered by the court on its own motion. A judgment by this court granting a new trial to the defendant in a capital case has been very carefully considered.
Under the ruling of this court in State v. Jones, supra, motions on behalf of the State should not be considered in any instance where a judgment favorable to the defendant is final, or would become final by operation of law. The motion for rehearing filed by the State should have been dismissed. See dissenting opinions in Glustrom v. State, 206 Ga. 734
, 740 and Henderson v. State, 209 Ga. 238
, 241. I am authorized to say that Mr. Presiding Justice Wyatt and Mr. Justice Almand concur in this dissent.