*1 426 DUHART v. THE STATE.
31275. Presiding Justice. Undercofler, appeals from his convictions Duhart Leon Defendant twenty robbery sentences and murder and ofarmed consecutively. years plus He raises two life, be served circumstantial evidence error: that the enumerations of does conviction should robbery support that the armed the verdict and not included offense a lesser be set aside as We affirm. in the murder. though case, evidence, circumstantial
1. The support defendant, The the verdicts. is sufficient to nineteen-year-old, apparently
began evening his of crime by breaking January 13,1975, 8 9 o’clockon between and parked Zeigler’s Macon. in downtown Cadillac into Curtis fingerprints inside, and on were discovered His magnum, Zeigler’s passenger .357 door. outside of the missing. blue steel Smith & Wesson was McElroy o’clock, as Mr. William About Volkswagen, parked approached man in a his red jacket, length three-quarter victim whom the leather lineup photographs in a as the later identified from defendant, pistol against magnum him a blue steel shoved McElroy’s keys. had his car Since wife and demanded produce keys shot and the defendant them he could not him in through arm, shot and fired another Mrs. Wanda windshield. Defendant McElroy then threatened get just telling in the car arrived, her to who had money, her to take He her told or he’d shoot her also. took legs. pants then told He her between the her and shot off They get them. walked car he’d kill of the them to out they collapsed. A recovered bullet before about ten feet probably .357 from a .38 or fired VW most was from the expert according who Wesson, to the ballistics & Smith belonging fingerprints to the defen- trial. No testified at on the VW. dant were found A.Y.S. Cab for the later, a driver A minutes few "wild-eyed” young approached male Company city. Heights go area Tindall who desired specific address, the rider requested a driver After the get saying Yellow changed curious a less he’d his mind driver destination. him to his take Cab driver to acting crazy, wearing him described not normal and as pick picture a dark coat. He was able to out defendant’s photographs. from several dispatchers Cab
Three Yellow drivers and identified person defendant as who came into their office seeking Heights a ride to the Tindall area. Since had to he *2 available, wait ten they for a to fifteen minutes taxi to become study gave appearance. had time to his Each description picked photo similar his from several They appeared others. also noted that the defendant passing by. nervous when a siren was heard victim, When the Shirah, taxi A. B. driver arrived to pick up defendant, 11:30, at about he was sent with Dempsey get the defendant to the Hotel to another fare going in the same direction. Shirah called about five saying appeared minutes later no one had from the hotel Heights proceeding and he was to Tindall with the dispatcher 11:45, defendant. At tried to radio Shirah pick up way to make another town, on his back into there nowas answer.
The taxi drivers testified Shirah had been working since about three that afternoon and that he had sixty right pants pocket. about dollars front A his body lying minister his found Shirah’s outside cab Heights Tindall area about three blocks from the pockets defendant’s home. His were out and turned inside passed he had back; been shot the bullet had through body. his medical examiner testified that the wound had been made either a .357 or .38 bullet which gun pressed against had been fired back. The bullet fingerprint from victim’s recovered, but the was not defendant’s on was found on the front window the driver’s side of the taxi.
We find set out in this evidence meets criterion § Code Ann. warrant a conviction on 38-109: "To cir- proved only evidence, cumstantial facts shall not hypothesis guilt, consistent with the but shall exclude every guilt hypothesis that of the other reasonable save (213 SE2d State, 840 v. 233 Ga. accused.” Woodruff 689) (46 504) (1948). (1975); State, v Parks 203Ga. 302 SE2d supported guilty The evidence both the verdicts of on robbery, murder and armed and the trial court did not err trial. overruling new for a motion defendant’s robbery is a that armed also contends 2. Defendant that conviction and thus murder offense of lesser included urges State, v. Burke He be vacated. should and sentence 812) (1975) support his SE2d 234 Ga. clearly distinguishable argument. That case is robbery during was who an armed involves a lookout actually shopkeeper, murder of the malice convicted of necessary accomplice. There, the malice an killed the participation by the accused’s shown murder conviction was robbery. the armed Since in the armed murder, robbery of the element an essential was robbery and was included offense a lesser armed vacated. however, the armed us,
In the case now before
robbery
murder, but is a
element
is not an essential
separate
against
Burke v.
victim.
the same
crime
(see
concurring).
supra
4, Hill, J.,
Division
except
Judgment
concur,
the Justices
All
affirmed.
specially.
Gunter, J., who concurs
*3
September
Argued July
7, 1976.
12, 1976
Decided
appellant.
Hicks, Jr.,
Claude W.
for
Thompson,
Hasty,
Attorney, W.Donald
Fred
District
Attorneys, Arthur
Johnson,
District
P.
Assistant
Walker
Attorney
Kohler,
General,
Bolton,
Harrison
K.
Staff
Attorney
appellee.
General, for
Assistant
concurring specially.
Justice,
Gunter,
judgment
the
I
that affirms
concur in the
of the court
upon
by jury,
imposition
sentence,
a
of a life
recommended
opinion
concurring
I
convicted murderer. write this
example
of
the exercise
a vivid
because this case is
by
unguided,
unchanneled, and uncontrolled discretion
impose
jury
impose
making
the
or not
its decision to
system.
capital punishment
penalty Georgia’s
having
appellant
jury
for
the
convicted
imposition
prosecution sought the
murder;
committed
the
crime;
penalty
the commission of
of the death
for
statutory aggravating
jury
circumstance
found one
yet
jury
present beyond
doubt; and
a reasonable
appellant
recommended and extended
imposed
penalty.
a life sentence rather than the death
system
imposing
penalty
The current
for
the death
Georgia
Assembly
was enacted
1973,
General
my
consistently upheld
brothers on this court have
constitutionality
system
of this
since its enactment.
612)
Coley
(1974).
State,
See
v.
Section Act, enactment, this 1974 after reads: penalty may "In imposed all cases in which the death by jury, upon and which are tried a return of a verdict of guilty by jury, tbe court shall resume the trial and pre-sentence hearing jury. conduct a before the Such hearing shall be conducted in the same manner as pre-sentence hearings judge conducted before the (a) provided Upon in subsection of this Section. arguments, judge conclusion of the evidence and the tbe give jury appropriate shall instructions, and the any mitigating shall retire to determine whether § circumstances, as defined in Code 27-2534.1, exist and to recommend whether Upon jury, judge findings defendant. prescribed by shall fix the sentence within the limits law.” *4 my dissenting opinion Gregg In in v. 233 Ga. (210 659) (1974), quoting 117 SE2d after these 1974
statutory revisions, I "I said: conclude that 1974 these Georgia Assembly expressly enactments General placed sentencing impose discretion in the fact-finder to
430 And in case. this is impose any not the death constitutionally impermissible be
what understand to the United Supreme under the decision of the Court of 2726, U. 238 States in Furman v. 408 S. SC Georgia, 346).” 33 LE2d P. 130. view, revisions,
It is my under these that a trial in all judge charge sentencing juries must capital they may cases that recommend for the convicted that party, such a recommendation is binding court, and that upon the such recommendation means party the convicted will be sentenced to life imprisonment by the court. Utah, (1889), Calton v. 130 U. Supreme S.
Court of the United reversed a conviction and the States imposition of the death penalty by jury, jury because the had been not advised of its to make such a right court, recommendation under the prevailing statute. The Harlan, Mr. speaking through Justice said: "While in this case the jury were instructed as to what constituted murder the first and second degrees, they were not informed as to their right, statute, under to recommend imprisonment for life at hard labor in the penitentiary place of the If punishment of death. their had statute, attention been called to that it may be that they would recommendation, have made such a enabled the thereby punishment court to reduce the for life. imprisonment We are of the that the court opinion erred in not directing jury attention of matter. The statute evidently proceeds upon ground that there be may cases of murder in the first degree, punishment which by for life at hard imprisonment labor suffice to meet the ends of public justice.. object could only Its have been met through recommendation the lesser punishment inflicted, and it is be presumed not to they were aware of their right to make such recommendation.” Pp. 86, 87.
I think that sentencing juries cases capital can, discretion, Georgia their uncontrolled make a any recommendation of thereby case life require imposition of a sentence.
InCoZey, Georgia’s said: "Can new supra, majority *5 'produce justice’? Logically, statute . . . it is evenhanded per condemned, not must but it is discretion se which be -unguided 'produce discretion that does not evenhanded ” justice.’ implication majority’s holding P. 834. The Coley Georgia’s system imposing in is that current for the penalty requires "guided pro- death discretion” that does justice.” duce "evenhanded To envision that result in the Georgia system nothing is, current nothing me, to than more and judicial self-deception.
less than charge sentencing The of the trial court to the in subject punishment the instant case on the for murder Jury, was: "Members of the the defendant this case has guilty been found of Murder which was count one on the. guilty Robbery indictment and also found of the Armed your is which duty indictment, .count two of the and now is findings to certain make which would determine the imposed punishment that shall be as the for the charge give you Now, offenses. the I which am about to you apply charge to the Murder will consider the same State relation Now, to this count. under the law of this
every person guilty found of Murder shall be punished by by imprisonment arriving death or for life. In your findings, punishment at which will determine the to you imposed be for offense, are authorized to consid- presented by er all the court, evidence received here in throughout the State and defendant, the the trial before you. you charge the death which that all cases provides
penalty may the authorized, be that law Jury mitigating Judge concerning shall instruct aggravating circumstances or circumstances which jury may making decisions which will consider ,determine punishment imposed. be
Mitigating not are those which do circumstances justification constitute a excuse for offense or may question, mercy, be which, fairness, extenuating reducing degree ofmoral considered as culpability or blame. or
Aggravating which increase are those circumstances injurious enormity guilt add to of the offense or its consequences [sic]. by jury upon if provides a where a trial law punishable may
person be offense of an is convicted imposed un- be shall not of death death, a sentence finding of at least jury’s includes verdict less rec- circumstance one imposed. aWhere such sentence ommendation statutory aggravating found and a circumstance Court shall is made the recommendation of death to death. sentence defendant is not recommended Where sentence defendant, jury, the court shall sentence provided by imprisonment as law. *6 finding jury trying a a of Unless the case makes the statutory aggravating and recommends the circumstance Court not sentence verdict, death sentence in its the shall the defendant death. to charge you statutory the that a State contends
aggravating exists in this circumstance case. statutory aggravating circumstance which the State 'The of in this is as follows: offense contends exists case engaged in Murder committed while the offender was capital felony, Armed another to wit: the commission of Robbery.’ you your arriving case, will at verdicts this mitigating
consider evidence as to the circumstances exists in this and which the defendant contends case you statutory also as the consider evidence to aggravating circumstance which the State contends exists in this case. you beyond
If find that the State reasonable doubt proved aggravating has the existence in this case of by given circumstance, State, and contended for as as you charge you by Court, then would be authorized imposition death, to of recommend the sentence you required not would to do so. you imposition
If recommend the sentence required death, to sentence the Court would be defendant to death electrocution. you beyond
If find reasonable doubt the State proved has case the existence given circumstance, as contended for you statutory charge by Court, is, you aggravating circumstance, would also be authorized Court, to which is a recommendation the defendant to the of the recommend you may make either with or may any it for reason that is without a reason. You make may satisfactory you, it a reason. You make without arbitrarily, course, matter of as a matter of or as a discretion. you
If of the recommend the defendant to required Court, to sentence the the Court would be Penitentiary defendant to confinement the State during the term of his natural life. you beyond If do not find a reasonable doubt that the proved State has the existence aggravating circumstance, has about which the Court you, charged you then be authorized to consid- would not you er would make no you If recommendation. make no recommendation the required Court would be to sentence the defendant Penitentiary during confinement in the State for and term of his natural life. writing.
Your verdict must be in ... We will furnish By Thompson: Mr. got pages
We’ve It two to this indictment. could probably go page. on the inside
By the Court: agreeable
Is that to the defense counsels? (Defense agreeable.) counsels indicate that *7 By the Court:
Let me restate that in then. Your verdict must be writing and be affixed and to the back of this indictment by that’s consent of counsel for the State and for the defendant. you unanimously beyond
Now, if find reasonable statutory aggravating circumstance, doubt that as given you charge by in contended Court exists as you case,
in determined to this punishment death, recommend the then the of the defendant to your in to form of verdict that event would upon you finding count one make a and the which would following jury be, form that 'We the find the verdict statutory aggravating in circumstance to exist this case.’ statutory your You will then write out in aggravating verdict the you using find which to exist circumstance the exact language given you charge by the Court which you you will have out with for reference and this is the statutory circumstance aggravating State case, you contends following language would add: 'And we recommend that the defendant be punished by That death.’ verdict would mean that Court would be required to sentence the defendant to death by electrocution.
Now, I if you you beyond further that believe charge reasonable doubt the State proved has the existence of the statutory circumstance, about which the aggravating Court you, you has recommend charged may defendant event, to the of the Court. In that form your one, verdict would be: 'As to count number we make the following finding,’ add, and to that you would 'We the jury recommend the defendant to the Court.’ That verdict would require the Court to sentence the defendant confinement for and penitentiary the term during of his natural life.
Now, if you do not find such statutory aggravating beyond doubt, circumstance to exist a reasonable then you would make no recommendation punishment the defendant. event, your the form of verdict would one, be: 'As to count find jury we the that there is no statutory circumstance this case.’ That verdict would mean that the Court would sentence the defendant to confinement in the penitentiary for and during term of his natural life.” This charge this case be- certainly lies the concept guided discretion that produces justice. evenhanded The Georgia system extends to sentencing juries cases the capital pure discretionary power to dispense mercy.
I have concluded that the Georgia judiciary has been saddled branch legislative of our state government with two concepts that collide with each other and are therefore totally incompatible. The first concept is that of producing justice. evenhanded That is certainly and, me, desired paramount goal to be achieved in a judicial system. However, that goal cannot be achieved in area punishment when the second concept, the statute. The *8 permitted by is dispensation mercy, legislature judiciary: has said to the Produce evenhanded justice capital punishment dispense in the area, but any capital your case at discretion. The two concepts my concurrently cannot, view, im- plemented by judiciary. The author- juries sentencing dispense ization to mercy cases to wholly incompatible in their discretion is with judicial production justice. say of evenhanded And to again, judicial self-deception. is, is, capital punishment legislative
In the area, government permit prohibit branch of enacts laws that or imposition penalty by judiciary. of the death The legislature nothing imposition has at all to do with the penalty upon the death law; convicted violator ofthe nothing carrying it has at all to do the with out of the penalty penalty imposed. once such a has been The imposition responsibility is the De- Judicial partment, carrying responsibility and the out is the Department. Therefore, Executive once a death penalty legislators enacted, law has been have no further capital punishment process. official involvement judicial government charged The branch of our responsibility imposing penalty with the not the death or imposing penalty conformity the death with the by legislative Constitution and laws enacted branch. by judiciary participating And I mean to include jurors, judges, appellate judges. trial penalty
Once a death in a concrete case been im- has posed by judiciary by pursuant to statutes enacted legislative Department. passes branch, the buck then to the Executive carry penalty
It must
out this ultimate
determine that it shall not be carried
President,
out. The
the Governors of the
states, and,
individual
in some
instances, constitutional Boards of Pardon and Parole are
constitutionally
power
clothed with the
to commute death
penalty
imposed judiciary.
sentences
See Shick v.
430) (1974).
Reed,
sentencing are authorized dispense mercy, discretion, statute to convicted their they dispensation. I would murderers that select for such *9 system Georgia’s that current for therefore hold imposition penalty judiciary cannot of the death produce justice, and it therefore evenhanded specific unconstitutional provisions it violates three my dissenting Georgia Constitution. See supra. opinion State, in Street v. mercy dispensation
I have also concluded that the penalty mercy dispensed, in take if area, the death is to be must Department place not the in the Executive carry imposed judiciary. out an death The executive can imposed penalty; the executive can commute an imprisonment to a sentence of life with the (Schick supra); non-parole Reed, condition of attached v. and the are not merciful executive can take other avenues
constitutionally proscribed. jury dispensed It is clear that in the case at bar the appellant; judge required trial impose only sentence; statute to a life this court can affirm imposition dispensation sentence; and ofthat life such discretionary system prohibits mercy by jury in this justice. production by judiciary evenhanded judgment Though case, I I in this concur in the system under where dissent in all other cases this jury arbitrarily dispense and, its declines arbitrarily imposes discretion, the death sentence. thorough agreement I am in the statement of with Rehnquist, dissenting Mr. contained in his Justice — — (96 opinion U. Carolina, in Woodson v. North S. 944) (1976): Georgiasystem, 2978, 49 SC LE2d "Under imprisonment, this is free to life recommend opposed death, reason for no stated whatever. Georgia Supreme therefore, know, Court cannot when is reviewing jury capital cases, sentences for life whether jurors aggravating present, found circumstances mercy, decided instead nonetheless to recommend opted found no mercy.” (Rehnquist, circumstances at all and dissenting). J., 49 LE2d 969. concurring. Justice, Hill, opinion judgment I of the court. concur opinion solely concurring because of the write
437 (see specially concurring opinion 26(c)), Rule which should be read first. As Mr. Justice Stewart wrote in Gregg v. Georgia,
— — (96 LE2d 859): U. S. 2909, SC 49 "Nothing any of our cases suggests the decision to afford an individual defendant mercy violates the Constitution.” See also 829) Moore v. 861, Ga. SE2d (1975) (Hill, J., concurring).
31276. CHILDRE v. CHILDRE.
Ingram, Justice.
This is an appeal by the husband from an order of the Cherokee County Superior awarding Court temporary *10 alimony and attorney appellee-wife fees to the on her counterclaim for divorce. We affirm. parties separated were married 1952 and
1975. Three children were born of the After marriage. they separated were parties signed both an agreement purporting to settle all matters alimony, support, property agreement division. The it provides "may part any become judgment, any order and decree proceeding brought by against either the other for party divorce or any matters herein dealt with.” Payments per month were included $500 agreement alimony counterclaim, as to the wife. her the wife alleged agreement through that the was obtained fraud and coercion and she sought temporary alimony pending final action on the divorce. After a hearing, trial ordered, court alia, inter temporary alimony $800 per month and awarded attorney fees wife’s $500 counsel.
Appellant-husband
his
contends
first
enumeration
of error
abuse of
flagrant
reject
discretion for the trial
judge
separation
agreement and to
in an amount
temporary alimony
order
greater
specified
than that
in the
We do not
agreement.
agree.
alimony
within
Temporary
generally
Hearn,
discretion of the trial court. Hearn v.