*1 95 Hеnce, there no harm in to inform the failing appeal. defendant of his See as to waiver when right. general Smith, Goodwin entered, 118, 226 are Ga. guilty pleas (172 661); States, 120 v. United 256 SE2d Edwards 707, F2d 709. and fourth
2. The second enumerations of error of the failure of the Cobb Court to rule complain Superior on insanity filed that court. After counsel for plea received the report psychiatrists, the petitioner did not pursue counsel matter and made no demand for trial this issue inasmuch as he was without evidence to sustain such plea.
Under such circumstances it not error trial court to fail to rule on this issue.
3. The remaining enumeration of error which contends indictments were is without illegal merit. All the Justices concur.
Judgment affirmed. July September 1975 Decided Submitted 1975. Martin, pro se. Charles R. Bolton, General,
Arthur K. Attorney John W. Dunsmore, Jr., General, Attorney Assistant for appellee.
30163. THE BUTLER v. STATE.
30165. ROBINSON v. THE STATE. Presiding Justice. Undercofler, Butler, Mitchell, Calvin William "Billy” and James Alexander Robinsоn were indicted for the armed robbery of Mrs. James Carr. Butler and Robinson were separately tried, convicted and sentenced to life imprisonment. William Mitchell indicted for the murder "Billy” also was Carr which occurred the armed during rоbbery. pled and was sentenced to guilty court. Mitchell v. death. His sentence was upheld by this State, (214 900). These are from appeals the armed convictions of Butler and Robinson. robbery Butler Mitchell had met shows that
The evidence five-year of a completion after his soon Robinson about three robbery for attempted in Florida sentence before the robbery. day to the prior months decided to leave the three of them murder Florida, Cаlifornia. Jacksonville, Angeles, to Los go *2 in Mitchell’s car. Butler testified left Jacksonville They the time. did not over at Robinson he did not have $25 that Mitchell Butler owed him but any money $10. have Folkston, from relatives at money to some plаnned get drove on to en route but was unsuccessful. Georgia, went to the bus station to wash. Albany, Georgia, and time later and left the trio and returned a short Mitchell said, "I At he four dollars.” got Butler testified trial, that when Mitchell Robinson testified Robinson’s Butler the station he heard him tell them at bus rejoined in the mouth and four got some bitch that "he had knocked left his time had about only Butler at that $3 dollars.” they return to Jacksonville. money suggested and he did not they the officers that he knew that Robinson told to On their return any money have and were "busted.” truck in and stop Sylvester Jacksonville at a they stopped The next Butler drove morning the the car. spent night Mitchell in the City Sylvester. passenger into the and Robinson was in thе back seat side of the front seat store, convenience Mitchell an IGA asleep. they passed As block, the next drive to directed Butler to turn around at store, in the the facing the side of the traffic lane stop no main road on the where there were building side Butler both that Mitchell windows. and Robinson knew had a when he into the pistol pocket went store. Butler and both testified Mitchell told Robinson them he into the store to to eat going get something did nоt know that he had intention any However, crime. in his statement to committing any prior officers, the Butler did not tell them that Mitchell police into the to Mitchell get went store to eat. something neither Butler nor Robinson testified at both triаls that in the store. any knew he to commit crimes while planned Butler did not have a driver’s license and he insisted that Robinson the vehicle in he did. drive which Robinson took the driver’s seat while the car was parked at store. 7:00, at Mrs.
On Sunday morning, August sоn, fourteen-year-old her James Carr and convenience store grocery the IGA Carr, opened Mitchell County, Georgia. Worth in Sylvester, business store, it at pulled pistol pointed into the walked her took Carrs, purse, Carr of from $150 robbed Mrs. $15 into the cooler at and forced them register, from cash Carr, rape He threatened to Mrs. of the store. the back cooler, in the boy shot forced them to sit down and left the in the back of her head chest, Mrs. Carr shot later for valuables. Seconds cooler to search Mrs. both victims. again returned to the cooler shot to an managed struggle four times but Carr was shot when for assistance telephone room and adjoining the сooler. Mitchell left cousin, seventeen-year-old and his
William Monroe in front of the Monroe, their car parked meanwhile Derry noticed the car which gold entered it. William store and were seated near the storе. When Butler and Robinson on the leaning Mitchell was entered the boys *3 by When the register. boys passed counter at the cash counter, Mitchell came to the meat way Mitchell on their into the forced them at gunpoint behind them and up him he did Derry of but told cooler. He robbed William $6 and bleeding saw Mrs. Carr any money. boys not have the in her hand. telephone near the cooler with crying into the cooler with her the were forced boys Mrs. Carr and at that time. He had Mitchell had a each hand gun son. the the while the store after guns searching found one of the Monroe Mitchell fired his at gun were shot. victims and he left the cooler. The victims boys but it misfired until the remained in the cooler for about five minutes police arrived. the radio at the dispatcher Sylvester
At 7:20 a.m. Police received a call from the Department telephone him of Mrs. Carr’s operator report advising the call and Within two minutes of the shоoting. receipt Young the Officer Officer arrived at store. Young Gordon a it bore the car near the store and observed gold saw the front side door was passenger Florida license plate, Butler) (later man identified аs open, young a black heavily standing black it, another bearded beside Robinson) (later the wheel. was under man identified as patrol intently stopped They the as he both looked at him store, had been he saw the man who сar to enter speed away standing get he the car into the car and saw immediately heading entered the The officer north. observing hearing anyone seeing a inside, but nor not open register bag floor, to the on the thе drawer cash bank and immediately open lady’s purse counter, he on the checkout a message from his and radioed a left the store gold patrol car for the two men and the car for a lookout tag dispatcher he had and told the what with the Florida he When he returned to the store discovered at found Mrs. Carr and store. boys emerging the Monroe from two lying Carr on the floor of the cooler and saw the day. Christopher died later сooler. patrolman police Larry McDonald, former with the police department, message the lookout on his radio heard highway proceeded by scanner at home and car to speed at a to watch for such a vehicle. The car came forty per going McDonald followed miles horn: north and taking tag it, occupants number, the two down its and observed that description.
met the broadcast He returned to police telephoned the his home and information to dispatcher Sylvester. occupants At 7:25 a.m. the two Robinson, Ashbum, car, were arrested at Butler and driving Georgia. the vehicle at the time of Robinson was apprehension. gоld vehicle back The officer who drove to it run "hot and cut out” on testified that would sixty per him it hour he when was driven about miles forty forty per to had to drive about to five miles hour Sylvester. belonged
Butler and Robinson testified that the cаr get to Mitchell that Mitchell had entered the to store something shooting, eat, done the actual only waiting were on him to return to his car. *4 they said when heard the shots inside the store Butler crazy probably somebody,” said, 'That fool has killed they they to be then left the scene because did not want they car involved. testified that drove Mitchell’s about two blocks and turned around and came back to happened. They scene to a see what saw with
99
the sidewalk
along
hand walking
paper bag
brown
them to leave
he motioned for
testified that
but Robinson
with that
conflicts
appellants
him. This
of both
testimony
who testified
Young
and Officer
of William Monroe
stopped
they
apprehended
the car ixfwhich
were
the scene.
arrived at
the road
the store when
by
that morning
officers later
captured
Mitchell was
He had the
from the scene.
blocks
several
him
had Mrs. Carr’s black
with
he had stolen
money
wеapon
in the store. The murder
he found
which
pistol
it. Held:
Mitchell had thrown
was found later where
grounds
the general
1. The
contend
appellants
We do not
trial are meritorious.
motions for new
appear
of the facts might
thе recitation
While
agree.
beyond
there
proof
as to whether
question
raise some
in the robbery,
of their participation
a reasonable doubt
weight
arbiter of the
"the
is the exclusive
yet,
jury
and,
testimony
witnesses
to bе
credibility
given
cases,
may only
court
ascertain
even in criminal
this
the verdict.”
support
there
evidence to
any
whether
is
(2) (142
778);
v.
State, 221
9
Strong
v.
Ga.
SE2d
Hogan
(206
461). The
State,
294,
general
298
SE2d
232 Ga.
merit.
the motions for new trial are without
grounds
the trial
2. Thе
Robinson contends
appellant
objection
in evidence over his
allowing
court erred
the murder victim because
it would
color
picture
We do not
jury.
agree.
inflame
v.
in evidence. Dixon
was admissible
photograрh
(2) (200
State, 211
State,
138); Hill v.
Ga.
Gunter and who dissent. September 1975. July Decided Submitted appellants. Marion L. Bridges, Bolton, Forehand, J. Arthur K. Attorney, W. District Parker, General, Attоrney Assistant Stephen G. Attorney General, General, Attorney Oakley, LoisF. Assistant Staff *5 for appellee.
Hill, Justice, dissenting. is an armed case. robbery
This In the court Division admission into approves (in color) evidence of a of the photograph victim of a murder. None of the decisions citеd court holds case, in murder robbery an armed of a victim photographs are admissible evidence. (5) (151 State,
In Thompkins 153), it held that a photo of the dead victim was admissible a case of force robbery by and intimidation. However, in that case the victim "went limp” being while held by the defendant. There the court conceded that deceased, crime, of the photographs taken a week after the were highly prejudicial but relevant to show the location and conditions under which the took robbery place.
Here it is not contended that these defendants ever went into store or ever saw the deceased. Here there were other inside photographs and outside. The other decisions relied on as authority were photos of murder cases, victims murder photos cases, victims in robbery or victims photos rape in rape cases.
It might be argued these defendants could have been charged with murder felony and thus of the victim photograph would have been admissible. know, were not so charged. Why we do not but will the district presume attorney grand jury acted in not properly indicting these felony defendants murder. We should not approve the admission into evidence of on photograph this if basis that been murder, indicted for felony the photo would have been admissible.
I must I respectfully dissent. am authorized to state that Justice Gunter joins this dissent.