*1 General, F. for Oakley, appellee. Lois Attorney THE STATE.
29278. MOORE v.
Per Curiam. conviction, of and sentence guilty, a of
Following plea is here robbery and armed this case death for murder of the death sentence for review mandatory and appeal charged William Neal Moore was The imposed. appellant of murder and armed the offenses committing 2, 1974, indicted aby grand on was robbery April 13, 1974, and entered a May plea on County Jefferson trial on June by jury to both and waived guilty charges entered, appellant’s plea After the who of the doctor prosecution presented testimony in- victim’s two body, on the autopsy performed who investigated and the sheriff vestigative agents ap- testimony by defense presented The offenses. Thereafter, the trial his family. members of and pellant and aggravating death sentence. revealed evidence and other testimony and Army, the U. S. member of had been Curtis, a George he met where military policeman,
former him Curtis told Stapleton. Fredger the victim nephew money having Stapleton Fredger uncle about his defendant, In the words he lived. him where showed he up, his uncle to burn this, he wanted planned "We house, and we him in the up burn money get would into after he went scared got there and Curtis went over we time, drinking, we was the first house, that was house, we went over to the ... we went had been drunk of the bedrooms one door, between got the back and we door, left locked we room, there was a the front Curtis, he left and went Curtis’ house. back over to went . . .” there back over of April evening
In the late through home re-entered apparently he was After entrance gaining bedroom window. at shotgun to fire a proceeded who by Stapleton surprised .38 caliber pistol in his fired all five shots him. Appellant died from two bullet subsequently Stapleton. Stapleton at Stapleton, appellant After shooting in the chest. wounds victim’s from the remove two billfolds proceeded *2 then left shotgun. Appellant the victim’s and took pockets home and walked the Stapleton the front door of through a laundromat by parked which was to his automobile residence, victim’s burned the to his He nearby. proceeded taken money the shotgun. disposed wallets and $5,700, amounted to appellant from which sub- surrendered to officers. Evidence at the sequently scene and corroborated implicated his state- ment. killing Stapleton: denied intention of
Appellant in him. When I went killing "I didn’t have no intention of me in the there, out there and hit shotgun he come him, I’m me, sorry me shoot and for it scared made leg, did, and ask for of the court.” Held: mercy what that "The 1. first enumeration of error is Appellant’s penalty and out of death imposition carrying penalty death present Georgia accordance with Eighth statute is unconstitutional and violation of the and Fourteenth of the United States Amendments Con- stitution.”
(a)
contention,
In support
appellant argues
of this
permitted by
penalty
that the discretion
statute
arbitrariness,
the statute
rendering
leaves room for
thus
equal protection.
unconstitutional
as a violation of
the record is
Although
appellant plead guilty,
objections
clear that he
his
at the
reserved
constitutional
612),
In
trial level.
in the Georgia
this court addressed the issue of discretion
§§ 26-2001
death
statute
penalty
in the
of the
and Fourteenth
Eighth
27-2534.1 et
face
seq.)
of the United States as
Amendments
to
Constitution
applied by
those amendments were construed
Georgia
of the United States
Furman v.
Supreme Court
2726, 33
(b) The death further argues constitutes cruel and inhuman violation of the of the Amendment prohibition Eighth U. S. Constitution. majority We have found no case where United of this has Court of the States or court Supreme held that the cruel and unusual constitutes punishment.
In the Furman and Jackson Chief *3 of the only noted "that two members Burger, dissenting, court, Marshall, have Justice Brennan and Justice concluded the Eighth prohibits capital that Amendment for all crimes and under all circumstances.” State, State, v. v. House 231 See also Ga. supra; State, (205 Eberheart 217); 232 SE2d (206 SE2d (a) to the sentence that contends as death case is imposition the this the sentence other similar imposed to disproportionate cases. trials, of the record of
Appellant part cites two not a trial, to the in the alleges this which he are similar facts imposed. case was not instant wherein sentence the trial by were not considered Although they court, be some is by cannot considered this comment the duty compare this court’s appropriate concerning in similar cases. imposed sentence this case with that the Furman and duty view court’s of light As we the by provisions designed and the statutory Jackson cases objections those to meet the of Georgia legislature required court not to determine that less this is than a never in a with imposed death sentence was contrary, some similar characteristics. On the we view it duty to be our under the that similarity standard assure no sentence affirmed unless in similar cases the state the death been throughout penalty has generally "wantonly freakishly imposed,” as stated in his by opinion Stewart concurring 238, 310), Furman and Jackson cases U. We S. supra. are to do our under the standards endeavoring duty provided.
(b) It is next asserted there was no aggravating in this a person circumstance case because cannot be robbery of armed if the victim is or not conscious alive at time the robbery. § provided:
Code Ann.
"A person commits
when,
robbery
theft,
armed
with
intent
commit
he
property
takes
of another
from the
or
im-
person
presence
mediate
of another
use
an
by
offensive
weapon.”
1249, 1298; 1969,
Ga. L.
p. 810. In
pp.
30),
Hicks
Without the force used the taking from could not have been That accomplished. Stapleton died from the force used either immediately, subsequently to the does not make the taking, offense less a robbery.
Appellant’s admitted in purpose going Stapleton’s home towas rob him. He then shot to overcome his resistance before taking Stapleton’s money. We con- clude that the evidence established that the offense of murder was committed while the was engaged in another capital felony, to wit: armed robbery.
The trial found judge mitigating did that a could everything man do after he was and did in caught, thing an honorable statements, true making with the officials cooperating In pleading guilty. addition to these circumstances consideration appellant urges following: that he fully cooperated old; with the that he is 23 police; years criminal; that he is not an experienced and that he started shooting from a combination fright and intoxication.
In our sentence review we have considered each of circumstances, the above with the along aggravating circumstance found by the trial court and the evidence the crime introduced in concerning court.
The death sentence
was
this case
imposed
trial
without
the intervention
of a
We
jury.
have
reviewed
sentence as
Ga. L.
required by
p.
(c)),
et
did in
v.
seq.
as we
State,
We have
compared the evidence and sentence
this
case with other similar cases and conclude the sentence of
excessive or
disproportionate
in those cases.
imposed
Those similar cases we considered
(175
State,
the case
v.
reviewing
Lingo
are:
We find the that sentence of death this case is imposed excessive or to the disproportionate penalty and considering similar both the crime the (c) (3). § defendant. Code Ann. Notwithstanding the fact that there have been which robbery cases victims murdered and juries were life imposed (see sentences the cited that Appendix), juries cases show faced with factual have similar situations 829, 835, sentences. Compare Thus, supra. the sentence here was not and "wantonly above.) (see freakishly imposed” We have the transcript also reviewed and record in this case and have determined conviction and law, sentence are not and that contrary ample there evidence, in addition to plea support guilty, trial court’s judgment. judgment the trial court will, therefore, be affirmed. concur, Judgment All the Justices except affirmed. J.,
Hill, Gunter, J., who specially, concurs who dissents.
Argued February 16, 12, October Decided Rehearing denied March Pierce,
Hinton R. appellant. for H. Reginald Thompson, Attorney, District Arthur K. Bolton, General, Jr., Dunsmore, W. Attorney John Deputy Attorney General, Assistant for appellee. Justice, concurring specially.
Hill, In Furman v. U. Georgia, S. there supra, 10 opinions, were one curiam per (representing composite majority view of of the court as to the proper result), and one each of the Justices. Douglas, Justices Brennan, Stewart, White and Marshall against imposition of the death penalty in Furman. The Chief Blackmun, Justice Justices Powell and Rehnquist dissented.
The Chief Justice noted that
Justice Brennan
Justice Marshall
had
concluded
Eighth
under
all
Amendment
prohibits
capital
punishment,
cruel and unusual
being
that Justice
had determined
the death
Douglas
Amendment but did not
Eighth
can traverse
abolition,
its
final
and Justice
necessarily
require
White had concluded that
Stewart
the court must be set aside because
sentences before
comply
did not
prevailing sentencing practices
Amendment.
This court found the 1973 Act to be valid
I
supra, holding,
opinion,
as
read
that the Act permits
of the death
imposition
so as to
by
objective
controlled
clear and
standards
It therefore has become to undertake necessary Justices, writer, ascertain and the specified how three by see this issue: Where a death sentence be withheld may discretion, uncontrolled is the of the death imposition objective sentence controlled clear and standards nevertheless invalid? answer,
It difficult the three would divine how wrote, my but Justice White even conclusions though as I 408 U. S. cannot be must arrive at proved, judgment. I he opinion, 313. As read Justice Douglas’ concurring would hold invalid the sentence of death where left to the uncontrolled imprisonment alternative of would, I judges juries. discretion of or Justice Stewart believe, hold the death sentence invalid under a statute has not found the to be legislature
where invariably necessary and where others convicted of rapes just reprehensible murders and as do not receive the would, believe, White I unique penalty. Finally, Justice juries, hold invalid the sentence of death where their discretion, may do refuse to it no frequently impose of the crime. matter what circumstances Not one of the three Justices can feel with certainty would approve statute which un- prevents controlled imposition of the penalty but which permits discretionary non-imposition.
Moreover, defect, they it, see might dis- cretionary non-imposition, may be compounded by following: has discretion in prosecutor for a bargaining
plea of for a non-death exchange sentence. Once on trial he exercises discretion in whether to ask deciding impose The trial penalty. judge has trial, discretion to grant a new accept guilty plea, a non-death sentence impose upon plea. Presumably these events would occur when evidence showing aggravation is slight. law,
The new sentencing procedures Ga. L. pp. 352, 357, permit juries will to determine whether any mitigating statutory aggravating exist "and whether to recommend for the mercy defendant.” *7 a
Although majority of the United States Supreme Court might find the discretionary non-imposition of the death penalty to invalidate the controlled imposition thereof, I In waters, do not. these I murky do not feel that this conclusion constitutes wilful disobedience to the Constitution.
The discretionary non-imposition of a sentence of death is an act mercy. cannot find discretionary mercy unconstitutional it renders invalid the controlled of it. If nongranting the Constitution says otherwise, then the powers executives’ of commutation provided by civilized governments would render sentence Moreover, of death invalid. if discretionary non-imposition abolished, death penalty were then to be inability would, merciful an appropriate view, in my constitute cruel and unusual
869 case. of Ga. L. p. the validity I concur in upholding seq). 27-2534.1 et et seq. 159
Appendix.
v.
Lingo
Similar Cases Considered
the Court:
State,
State,
(175
Johnson v.
657);
Hill, This case is before this court on appeal The mandatory review of sentence. January
was indicted for murder on occurring trial at which Following sanity against 27,1974. plea May was held insanity, trial on death sentence imposed upon was the verdicts.
The evidence showed that about on the morning 9:45 21, 1974, Mrs. January Pearl Fryer at standing Store, the "check-out” in Matt’s Variety Manchester, Owens, Meriwether Sammie Lewis County, Georgia. came the store appellant, Fryer into and stabbed Mrs. knife, several times her death. The causing *8 Fryer. was not After the acquainted Mrs.