Dyson v. State

PER CURIAM OPINION ON MOTION FOR REHEARING AND ON MOTION TO CORRECT RECORD After the opinion in this case had been filed, the trial judge noticed that the word “not” had been omitted in a portion of his charge to the jury which had been commented on in the opinion, as reproduced in the transcript. As filed, the transcript shows that after Judge Harris had told the jury he had ruled admissible statements made to Uieutenant McKew by Melvin (the man the appellant sought to persuade the jury was the rapist) he said: “Some of this testimony by him is obviously hearsay —the statements made to him by Melvin. Those alleged statements were admitted by me only for the purpose of aiding you in judging whether or not the police were justified in arresting and holding the defendants in this case. That testimony, in and of itself, has nothing whatsoever to do with guilt or innocence of the defendant in this case; although you may consider the effect of Melvin’s statement as well as the defendant’s statement in arriving at your verdict. “My purpose in making this statement to you is to emphasize that any testimony in the nature of hear ⁵⁴⁷ say, told by Melvin t0' the lieutenant, bears upon only the issue of arrest and upon the issue of the guilt or innocence of the defendant in this case.” Judge Harris has certified that the second paragraph of the portion of his charge quoted above was, as delivered, actually the following: “My purpose in making this statement to you is to emphasize that any testimony in the nature of hearsay, told by Melvin to the lieutenant, bears upon only the issue of arrest and not upon the issue of the guilt or innocence of the defendant in this case.” (Emphasis supplied) —that is, that the italicized word “not” had preceded the words “upon the issue of the guilt or innocence of the defendant in this case.” The court stenographer, under oath, supports the recollection of Judge Harris by deposing that his original