CUMMINGS v. THE STATE
25517
Supreme Court of Georgia
January 8, 1970
January 26, 1970
226 Ga. 46
Since there was a failure to perfect the appeal within the meaning of Rule 14, the appellee‘s motion to dismiss the appeal is granted and the appeal is
Dismissed. All the Justices concur.
ARGUED NOVEMBER 12, 1969—DECIDED JANUARY 8, 1970—REHEARING DENIED JANUARY 26, 1970.
L. Paul Cobb, Jr., for appellant.
Richard Bell, District Attorney, Eugene Highsmith, Arthur K. Bolton, Attorney General, Hаrold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, Assistant Attorney General, Larry H. Evans, for appellee.
25517. CUMMINGS v. THE STATE.
ARGUED NOVEMBER 12, 1969—DECIDED JANUARY 8, 1970—REHEARING DENIED JANUARY 26, 1970.
Hester & Hester, Frank B. Hester, Richard M. Hester, for appellant.
ALMAND, Chief Justice. George Cummings was indicted for the murder of Anderson Shaw by shooting him with a pistol. The murder occurred on October 7, 1968. He was tried April 9, 1969, found guilty and sentenced to death. He moved for a new trial on the general grounds and five special grounds. His appeal is from the denial of this motion.
Enumerated error 4 asserts that the court erred in overruling appellant‘s written demand that the district attorney be required to produce: (a) copies of all reports made by investigating officers of the Atlanta Police Department and members of the district attorney‘s staff which were pertinent to the case; (b) a list of all witnesses who appeared before the grand jury, or who will or may appear in the trial of the case along with coрies of the fingerprint records of the witnesses; (c) a copy of the transcript of the testimony delivered before the grand jury; and (d) a copy of the transcript of the evidence taken in the hearing by the court of inquiry. These requests were made pursuant to
It is alleged that this denial violated the appellant‘s right to due process of law as guaranteed by the Federal and State Constitutions.
Under priоr decisions of this court, it was not error to deny the request for the production of the alleged documents. Williams v. State, 222 Ga. 208 (2) (149 SE2d 449); Walker v. State, 215 Ga. 128 (5) (109 SE2d 748); Blevins v. State, 220 Ga. 720 (2) (141 SE2d 426); Brown v. State, 223 Ga. 76 (9) (153 SE2d 709).
Enumeration of error 5 asserts that the court erred in denying the appellant‘s motion to question each juror individually concerning the truth or untruth of his opposition to capital punishment which was expressed in answer to the question propounded by the State, “Are you conscientiously opposed to capital punishment?” as provided for by
The record discloses that while the district attorney was in the process of qualifying the jury and asked the question as to whether or not any members of the jury panel were conscientiously opposed to capital punishment, counsel for the appellant asserted his right to cross examine each juror who answered in the affirmative as to whether hе was conscientiously opposed to capital punishment. Appellant‘s counsel further requested the court for permission to ask the two additional questions allowed under Witherspoon v. Illinois, 391 U. S. 510 (88 SC 1770, 20 LE2d 776). Whisman v. State, 224 Ga. 793 (164 SE2d 719). The court ruled that counsel for the appellant could not further examine the jurors.
The challenge to the qualifications of the jurors made here was to the poll, for cause. Such challenges are to be tried by the court on the testimony of the juror to the exclusion of all other evidence. If the juror‘s answer is found to be true, he is disqualified per se. Turner v. State, 114 Ga. 421 (2) (40 SE 308);
However, counsel for the appellant contends that under
Enumeration of error 6 asserts that the court erred in admitting into evidence, over objection, State‘s exhibit 14 (a test .22 caliber projectile). Appellant further argued that this exhibit, along with State‘s exhibit 13 (a .22 caliber pistol from which the fatal projectile was fired) shоuld not have been admitted into evidence because they were not connected with the defendant in any way.
Kelly Fite, a technician in the Georgia State Crime Laboratory, testified without objection that State‘s exhibit 13 (a .22 caliber pistol), State‘s exhibit 12 (a bullet taken from the body of the victim), and State‘s exhibit 14 (a .22 caliber test bullet) were examined by him. He testified that the test bullet (State‘s exhibit 14), was fired from State‘s exhibit 13 (the .22 caliber pistol in question). He further testified that, in his opinion, the bullet which killed Anderson Shaw was fired from State‘s exhibit 13. Counsel for appellant cross examined the witness concerning these matters.
It was not error to admit the exhibits complained of, since
The appellant, in his statement, admitted firing a pistol at the time and place in question. There was no evidence of any other pistol shots being firеd at the moment of the murder. Though there was no direct evidence that State‘s exhibit 13 was the pistol which fired the fatal shot, the jury was authorized to find, from the direct and circumstantial evidence, that the bullet which caused the victim‘s death was fired by the appellant.
Enumeration of error 7 contends that the court erred in denying appellant‘s motion for mistrial. Appellant urges that the motion should have been grаnted because of allegedly improper statements made during the argument by the assistant district attorney.
The record discloses that after the case had been submitted to the jury, appellant‘s cоunsel moved for a mistrial on the ground that in his argument to the jury, counsel for the State urged the jury to set the penalty at death because of the impact which it would have on the community in which the appellant lived. Counsel for the State withdrew the remark and requested the court to instruct the jury to disregard it. The jury was then instructed that such argument was improper and should be entirely disregarded.
Under these circumstances, it was not error to deny the motion for a mistrial.
Enumeration of error 8 contends that it was error for the court to submit to one and the same jury the issues of whether or not the appellant was guilty, and, if so, what punishment should be set. It is argued that the use of the same jury to perform both of these functions denies the appellant due process of law and an impartial trial, both of which are guaranteed to him by stated provisions of the State and Federal Constitutions.
Under the provisions of
The question of whether or not this practice is a violation of rights guаranteed under the Fourteenth Amendment is now pending before the United States Supreme Court. See Maxwell v. Bishop, 385 U. S. 650 (87 SC 768, 17 LE2d 671). Nevertheless, in Spencer v. Texas, 385 U. S. 554, 568 (87 SC 648, 17 LE2d 606) that court said: “Two-part jury trials are rare in our jurisprudence; they have never been compelled by this court as a matter of constitutional law, or even as a matter of federal procedure.” Also, in a footnote to the opinion of Giaccio v. Pennsylvania, 382 U. S. 399, 405 (86 SC 518, 15 LE2d 447), it was said: “We intend to cast no doubt whatever on the constitutionality of the settled practice of many States to leave to juries finding defendants guilty of a crime the power to fix punishment within legally prescribed limits.” This statement supports the conclusion arrived at in the opinion of Chatterton v. Dutton, supra.
We have carefully reviewed the evidence. It supports the verdict.
Judgment affirmed. All the Justices concur, except Felton, J., who dissents.
FELTON, Justice, dissenting. I dissent from the judgment and the ruling in Division 4 of thе opinion.
Under the facts of this case a rebuke is especially required. If the Code section is not enforced, an attorney in any case may make an improper remark, voluntarily withdraw it, and have his conduct erased by a mere instruction to the jury to disregard the remark. Any other rule than provided by this Code section would allow attorneys to play fast and loose with the court and the rights of defendants.