This death case presents questions challenging the jury under Witherspoon v. Illinois,
1. In Enumerations 1, 6 and 7 defendant argues that the court erred in not granting a new trial on the general grounds, in not directing a verdict because the accomplice’s testimony was not corroborated, and in inadequately charging the jury on corroboration. There is no merit to these contentions.
The evidence offered by the state showed that five armed men, including the defendant, converged on the RR & S liquor store in East Point; one, Robert Smith remained outside as a lookout, Robert Binns and Jerry Arnold entered the beer side of the store, and the defendant, Grady Arnold, and Willie Ben Johnson went into the liquor side. Jerry Arnold, defendant’s cousin, testified at the trial. His story was that after he heard a shot fired in the other side of the store, he saw the defendant step back with a smoking gun and watched as the victim, Ralph Scoggins, slumped down to the floor. The other attendant from the beer side was then ordered to open the safe on the liquor side of the store. One of the robbers shot at him, but missed; then, after loading the *535 cash in a box, they all fled. The defendant took a shot at a passerby, and with the others jumped into Jerry Arnold’s red car. When they realized another car was following them, the defendant leaned out and fired at it.
Thomas Wingfield also appeared as a witness against the defendant. He clearly identified Grady Arnold as one of the persons who ran out of the store, in front of his car, and down an alley to escape. He further testified that he knew the defendant and had seen him several times before. The witness even described the kind of truck and car Arnold drove, which the defendant later confirmed.
Code Ann. § 38-121 requires that, in felony cases, an accomplice’s testimony be corroborated. In
West v. State,
The charge to the jury on corroboration correctly stated that the corroborating facts and circumstances must be independent of the accomplice’s testimony and could be direct or circumstantial. However, defendant contends that the jury should also have been charged that this evidence "must cast more than a grave suspicion of guilt on the defendant,”
citing Allen v. State,
2. In his third enumeration of error, the defendant contends that the trial court erred in not granting a mistrial after the following question by the state during
*536
its redirect examination of a witness who had participated in the robbery. "In the statement that you [the witness] gave the police. . . did you implicate Grady Arnold as the man that did the shooting?” Since this question was not answered by the witness, the error, if any, was harmless.
Watson v. State,
3. Defendant’s eighth claim is that the court erred in failing to, grant a mistrial when the district attorney told the. jury in his closing argument on the sentencing phase that "from this case; [the defendant] has lied to you.” Since we are remanding, this case on this phase of the trial, we need not reach the merits of this contention. See
Shy v. State,
4. There is similarly no merit to defendant’s argument that the photograph of the victim should not have been admitted, especially since the defense attorney refused to stipulate that the body autopsied by the coroner was that of the victim.
Eberheart v. State,
5. In his fifth enumeration of error, defendant maintains that the trial court also should have granted a mistrial 'when a policeman was allowed to repeat the prejudicial words of a witness he had questioned. On direct examination, the state asked the police officer if he had looked for the defendant, Grady Arnold, as a result of a conversation with Wingfield. During cross examination, the defense attorney went into how many times the police had held Wingfield in jail for questioning, and . asked for records as to how many others had. been similarly detained. In order to rebut the inference that the police had acted improperly by keeping these witnesses in jail, the state then offered the exact words of the witness to explain the conduct of the officer in detaining Wingfield.
Conversation may be admitted underrCode Ann. § 38-302 to explain conduct and as such is not considered
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hearsay.
English v. State,
The defendant contends, however, that the conversation was prejudicial to him because it put his character in issue. Wingfield’s actual statement as quoted by the policeman on the stand was "Mr. Wingfield told me that he had some information for me concerning the murder and that he wanted to talk to me privately because he was afraid to talk openly because he was afraid for his life.” This comment is too nonspecific to be considered a reflection on the defendant’s character, especially since Wingfield knew and had already testified that several others were involved in the crime. See
Wingfield v. State,
Lanier v. State,
The question on redirect was properly within the scope of cross examination
(Dupree v. State,
There is similarly no merit to defendant’s contention that the court erred in not instructing the jury that the witness’ statement could be considered by them only to explain the officer’s conduct. Since the omission is not "clearly harmful and erroneous as a matter of law,” and because the instruction was not requested, there can be no error. Spear
v. State,
6. In his second enumeration of error, defendant raises the question whether veniremen can be excluded
*538
under the Witherspoon questions (Witherspoon v. Illinois,
It is readily apparent from Witherspoon v. Illinois, supra, Boulden v. Holman,
The precedents cited above, however, all relate to the substance of the questions asked and the answers received rather than the procedure used. The Supreme Court of the United States has held that "[v]oir dire 'is conducted under the supervision of the court, and a great
*539
deal must, of necessity, be left to its sound discretion.’ Connors v. United States,
The defendant also contends that the statutory voir dire questions cannot be put to jurors as a group over objection. Code Ann. § 59-806. We disagree. It is true that for many years these statutory questions had to be propounded to the jurors individually and that was the limit of interrogation to which a juror could be subjected as a matter of right.
Williams v. State,
7. The defendant also raises aspects of the constitutionality of the death penalty under the Georgia statute (Code Ann. § 27-2534.1) in his ninth and tenth enumerations of error. We have consistently held that this statutory scheme as a whole is constitutional and
*540
reaffirm our holding in
Coley v. State,
*541
"A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an
ad hoc
and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. Rockford,
Defendant here contends that the words "substantial history” and "serious assaultive criminal convictions” are too vague and nonspecific to be applied evenhandedly by a jury. He has only two prior convictions 3 and questions *542 whether that record constitutes a "substantial history.”
Black’s Law Dictionary defines "substantial” as "of real worth and importance”; "valuable.” Whether the defendant’s prior history of convictions meets this legislative criterion is highly subjective. 4 While we might be more willing to find such language sufficient in another context, the fact that we are here concerned with the imposition of a death sentence compels a different result. We therefore hold that the portion of Code Ann. § 27-2534.1 (b) (1), which allows for the death penalty where a "murder [is] committed by a person who has a substantial history of serious assaultive criminal convictions,” is unconstitutional and, thereby, unenforceable.
The sentence of death for murder is set aside and a new trial is ordered on the issue of punishment for this offense.
Prevatte v. State,
Judgment affirmed as to the conviction; reversed as to the sentence.
Notes
Prior to the cases decided today there have been twenty-eight capital felony cases in which the death penalty was imposed and reviewed by this court pursuant to the Georgia Death Statute. Nineteen have been affirmed; three were reversed as to the guilt phase of the trial, and eight were reversed as to the sentence. Of the latter, in five cases, the defendant had received another death penalty in the same case on other grounds, but in two of these the second death sentence was also set aside and the case returned to the trial court for a new sentencing trial. Three other cases in addition to those two were similarly sent back. In one case, the death sentence was reduced to life.
Of the nineteen cases that were affirmed, more than one aggravating circumstance was found in seventeen of them. There were eighteen in which (b)(2)(a) (while engaged in another capital felony) was found; fifteen under (b)(7) (outrageous or involved torture); eight under (b)(4) (for the purpose of receiving monetary reward); four under (b) (1) (a) (by a person with a prior capital felony); two under (b)(2)(b) (while engaged in a burglary or arson); two under (b)(3) (created a great public risk); one under (b)(8) (against a peace officer on duty), and one other under (b)(1)(b) prior substantial assaultive history, but in that case, the jury also found two other aggravating *541 circumstances.
With respect to race, the cases involved twelve defendants that were white and sixteen that were black. Of the eleven cases reversed as to guilt or the sentence six were black and five were white.
Grounded in the Fourteenth Amendment, the doctrine actually has two aspects: (1) fair warning to potential offenders of what the statute proscribes, and (2) standards to guide the court and jury in their determinations under that statute. Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960)
In 1968, defendant pleaded guilty to two counts of assault with intent to murder, and, in 1970, to armed *542 robbery, with two others, of a liquor store.
We do not here reach whether "serious assaultive criminal convictions” also renders this clause unconstitutional. See United States v. Raines,