Anderson v. State

Carley, Judge.

After a jury trial, appellant was found guilty of driving under the influence. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Although all of the provisions of OCGA § 40-6-391 (a) were not applicable, the trial court’s jury charge nevertheless included an instruction on the entirety of that Code section. The giving of this charge is enumerated as error.

“ ‘ “It is not usually cause for new trial that an entire Code section is given [.] . . . This is so even though a part of the charge may be inapplicable under the facts in evidence. (Cits.)” ’ [Cit.]” McBurse v. State, 182 Ga. App. 759, 760 (4) (357 SE2d 144) (1987). In the instant case, “[w]e will neither impute ... an adverse construction to the charge nor [infer an inability on the part] of the jury to select that portion of the statute obviously applicable to the facts and the issues presented for their determination.” Rowles v. State, 143 Ga. App. 553, 557 (3) (239 SE2d 164) (1977). Accordingly, this enumeration is without merit.

2. In addition to the exhibits and the accusation, the jury was allowed to have a copy of the trial court’s charge in its possession while deliberating. Appellant urges that, in allowing the jury to have a copy of the charge, the trial court committed procedural error.

The practice of allowing the jury to have a copy of the trial court’s charge is “an irregular practice and not to be condoned. . . .” Davis v. Ins. Co. of N. A., 163 Ga. App. 280, 282 (1) (294 SE2d 353) (1982). See also Chattahoochee Brick Co. v. Sullivan, 86 Ga. 50, 67 (6) (12 SE 216) (1890) (“irregularity”); Gholston v. Gholston, 31 Ga. 625, 638 (11) (1860) (“unsafe practice”); Woodard v. State, 91 Ga. App. 374 (2) (85 SE2d 723) (1955) (“highly irregular”). However, we cannot reach the ultimate issue of whether the trial court’s allowance of this “irregular practice” mandates reversal of the judgment in the instant case. Although appellant preserved the right to enumerate error as to the substance of the trial court’s charge, he did not preserve the right to enumerate as procedural error the trial court’s submission to the jury of a copy of the charge. See Chattahoochee Brick Co. v. Sullivan, supra at 67 (6); Woodard v. State, supra at 374 (1, 2). Compare Davis v. Ins. Co. of N. A., supra at 280 (1).

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.