51 Ga. App. 442 | Ga. Ct. App. | 1935
T. R. Berry, Olin Smith, and M. L. Craddock were jointly indicted, charged with the offense of attempt to commit robbery by intimidation. Each of them was charged with having been convicted of certain described felonies theretofore. It was alleged that “T. R. Berry, previous to committing the above described offense, had been convicted and sentenced for a felony, having been convicted, January 27, 1926, in Fulton superior court, indictment No. 25310, of the offense of murder, a felony; the charge being that he did in said County of Fulton, unlawfully and with malice aforethought, kill and murder one W. H. Cheek by then and there shooting him with a pistol, upon which qonviction the accused was sentenced for a felony.” Olin Smith had pleaded guilty to the charge, and M. L. Craddock had been found guilty by a jury. After the jury had been impaneled in the trial of Berry, they were sent out of the room on motion of his counsel, and the following motion was presented: “Now comes the defendant, T. R. Berry, and after pleading not guilty to the offense charged in the foregoing indictment, and in the absence of the jury impaneled to try the said case, and moves the court as follows: (1) Defendant admits that he is the same T. R. Berry referred to in said indictment as having been previously convicted and sentenced for murder, and defendant admits that he was in 1926 convicted of the murder of W. H. Cheek, and that on such conviction he has served in the penitentiary of the State of Georgia until in 1933 he was duly pardoned by the Honorable Eugene Talmadge, Governor of the State of Georgia. (2) Defendant admits that, in view of the
The evidence for the State disclosed that on the morning of Friday, April 27, 1934, W. M. Gilleland drove his car to the Fulton National Bank of Atlanta on Marietta street, parked his car in front of the bank, and went inside to get the pay-roll for his' employer. He drew $368 from the bank and had it in a sack or bag. Coming out of the bank he put the money in the car on the front seat. When he. first parked his car he noticed a green sedan car parked beside him, occupied by three men. When he came back out of the bank two were in the car and the third man walked around to get into the car parked beside his own. Gilleland got into his car, backed out from the curb, and drove down Marietta street across Five Points and down Decatur to Pryor street, where he turned south along Pryor crossing to Wall street, and across Alabama street until he came to Hunter street, where he was halted by a red traffic light. A policeman standing in front of the Fulton National Bank testified that the car containing the three men backed out immediately behind Gilleland’s car and followed it down Marietta street. When Gilleland stopped at the red light at the intersection of Pryor and Hunter streets, two cars were between him and the car containing the three men. One of the men, later identified as Olin Smith, got out and went to Gilleland’s car and stepped in and ordered him to “move over,” holding the steering-wheel with one hand and in the other holding a 45 Colt automatic pistol. Smith stuck the pistol in Gilleland’s side when he ordered him to “move over,” and Gilleland immediately struck Smith with one hand and grabbed the pistol with the other, and they both
It is insisted, inasmuch as the plaintiff in error came in before trial and admitted in writing the fact of his former’ conviction of a felony as alleged in the indictment, and as he conceded that if the jury should find him guilty of the charge the judge should instruct them as a matter of law that he should receive the maximum punishment, to wit, four years, that it was error for the court to fail to have such part of the indictment stricken and concealed from the jury, and to allow evidence to go before the jury in
The point is made, however, in the present case, that, despite the fact that under the present law it is necessary to allege and prove the conviction of a prior felony, the offer in writing by the defendant admitting the truth of such allegation and agreeing that the judge might charge the jury that in the event of a conviction under the instant charge they should fix the maximum penalty prescribed obviated the necessity of alleging or proving that fact, and entitled the defendant to have such allegation striken, and should have prevented the introduction of testimony in support thereof. We recognize the fact, as stated by Justice Lamar in the McWhorter case, that such an allegation in the indictment and proof thereof submitted to the jury would naturally tend to the prejudice of the defendant, as it' would tend to prove his bad character. It is unquestionably true that evidence of facts which in themselves are relevant to the guilt of the accused is not inadmissible because the defendant admits or offers, to admit such facts. The right of the State to introduce such evidence can not be taken away by such offer or admission. 16 C. J. 562; Currie v. State, 159 Ga. 775 (126 S. E. 835); 91 A. L. R. 1478. It becomes pertinent to inquire whether or not the prior conviction and sentence are relevant or a part of the offense of which the accused is being tried. “As a general rule, in prosecutions under statutes authorizing a more severe penalty to be imposed upon a conviction for a second or
As to the general grounds we think little need be said. The evidence already set out in this opinion speaks for itself. We fully recognize the rule that in cases of circumstantial evidence the circumstances must exclude every other reasonable hypothesis than that of the guilt of the accused. However, the conviction does not seem to depend entirely on circumstantial evidence; for the jury might well have considered the letter written by the defendant to his mother as an admission of his participation in the crime, although he at the same time tried to justify himself as having been forced at the point of a pistol to participate in it. However, conceding that the verdict is based entirely on circumstantial evidence, we can not say that it was insufficient. The many circumstances of the case seem to cast more than a strong suspicion on the defendant.
Judgment affirmed.