*1 Su-mmerour, Rich- General, E. J. Attorney Bolton, K. Arthur & Mat- Attorneys General, Grant Chambers, L. Assistant ard Knox, Grant, E. contra. thews, F. Robert William et al. MacDONALD 23029. ELBERT COUNTY v. rulings of excepted to certain County Elbert Justice. Mobley, No. 23027 trial court. this court in case ruling Under general the trial demurrer properly court overruled erred petition, and Elbert and II of the County to counts The general in counts and IV. overruling demurrer to III its County rulings excepted by other court Elbert the trial are affirmed. part. All Justices in
Judgment reversed part; affirmed disqualified. concur, except Cook, J., September Argued July 9, 1965 12, 1965 Decided September Rehearing 22, 1965. in error. plaintiff Grant, F. Matthews, & William
Grant
Chambers,
L.
Attorney General, Richard
Arthur K. Bolton,
Attorneys
& Lever-
Heard
General,
E.
Assistant
Summerour,
J.
Knox,
Robert E.
contra.
Leverett,
E. Freeman
ett,
v. THE STATE.
23049. WALDROP
Waldrop, Sammy R.
Presiding
Justice. Charles
Candler,
Clay-
Stephens
jointly
Farmer
were
indicted
and Charles
they,
alleges that
robbery. The indictment
County
ton
entered
Kilgore
Williams
together with James
and O’Neal
Super-
other to
Harris
conspiracy with each
rob the
into
market;
robbery was
pursuant
conspiracy,
to such
by
taken
accomplished
February 29, 1964,
$5,710
weapons
place
offensive
intimidation and
use of
Kilgore
business; that
and O’Neal Williams
James
defendant,
perpetrators
robbery;
but this
actual
procure,
and Charles
did
coun-
Sammy R. Farmer
perpetrate
robbery
them
and did
sel
induce
though
specified
commission,
abet
ways aid and
them its
its commission.
actually present at the time
robbery
Waldrop
separately. He was convicted
was tried
weapon
and was sentenced to serve
use of
offensive
*2
for a
trial was over-
prison term.
motion
new
amended
His
judgment.
excepted
ruled and
Held:
to
of an ac
testimony
1.
authorize a
conviction on the
felony
To
necessary
accomplice
it
that the
the
complice,
is
evidence
(Code
corroborating
cir
38-121),
“the
corroborated
§
of his testi
as, independently
should be
cumstances
guilty.”
is
that the defendant
mony, to lead to
inference
State,
346;
McCalla v.
v.
342
State,
Callaway
66 Ga.
151 Ga.
(106
(111
Langston
(3)
State,
SE
v.
Ga. 127
SE
577);
153
(171
561); Whaley
(2)
290); and
State,
v.
(a)
or more
enter into
Where two
conspiracy
furtherance of
penal
mit a
offense
conspirators
together
committed, all
who act
offense is
guilty
object
are
consummating
conspiracy
of its commis-
be absent at the
though some
(134
36).
State,
SE
sion. Gore
Since commission of the participated actively defendant sufficiently corrob- alleged that his evidence was robbery witnesses the de- of other orated by
321 there merit is jury, to the fendant’s statement general grounds the motion for new trial. contains motion for new
2. The amendment have thereof 4, grounds 2, 13 grounds, argued been ground has not been expressly abandoned will true, they This being either or brief. orally written upon. ruled be considered or general solicitor jury, In his to the opening remarks prove that the defendants Wal- expects stated: “The State on different attempted drop, Stephens and Farmer charged in other than the one commit a robbery occasions to made, counsel the indictment.” this statement When ground that such for a mistrial accused moved issue before “in put statement the character accused “I am not jury.” motion the court said: Respecting upon the going this, depending final to make a decision in- case, say possible evidence in the because I setting propér formation related under the to be *3 is going . the solicitor and circumstances. . I assume that proper manner to evidence before the this grant if does then will this proper sequence, not, and introducing this evidence, motion.” finished After State and on, neither nor ruled motion for a mistrial renewed was presents ground it the motion not, special since was this of this question by no for this court. State determination judgment by implication inference is not reviewable by or (95 appellate an Amos, court. Ga. 753 Amos v. 212 SE2d 136). (99 687); (4) Hardin Ga. 321 SE2d Homeyer, v. 213 being was State, Farmer, a witness 4. While asked: general, he was the solicitor directly examined what you trip Georgia, back to making were this “When all Super- job [robbery said this of Harris anything if was about too were where known they do they that had to market] they were mentioned, not “Well, it was well?” He answered: laughing life, time their having like it busy too seemed about how first another thing and one and telling about the so. Take, instance, cheated so and up bill and running big stayed hotel and went into this morning at 4 days or leaving 5 there and maybe two fellow or telling lady downstairs morning phone call and expecting important they person tell if at to called be back 6 and would 322 exactly 6 and walk out leave nothing.”
without the bill or after this paying Immediately question answered, was asked and counsel for the defendant ground portion for a mistrial moved that the latter answer other Farmer’s which related to acts and conduct put defendant his character in evidence when he for a elected do so. The motion mistrial overruled ground alleges 9 of motion for new trial ruling was erroneous and harmful There accused. portion is no merit in this contention. That answer on response mistrial was which motion for a based was question general propounded to the the solicitor the witness Farmer; and not, since it was counsel for the defendant have in should moved to rule it out evidence for an give struction to the jury to consideration in its deter guilt mination of the defendant’s offense tried. being State, In this connection see Burns v. 191 (9), (11 Carrigan Ga. State, 74 SE2d v. 206 Ga. 350); (58 (3) 407). SE2d ground Special alleges of the motion for new overruling or
court
motion to
erred
strike
police
Peppers, a
officer and
testimony
rule out the
of E. E.
please,
motion
“Your
witness for the State.
was:
His
Honor
Capt. Peppers’
like
a motion
strike all
I would
to make
he has
testimony on
occasion because
been allowed
sit here at
table
hear all of the witnesses
the counsel
has testified
heard all of
testify and
himself and has
sequestered
been
properly
State’s evidence
has not
rights
we
been
State
have
denied our constitutional
Georgia
testify
and after
heard
allow
he has
testify
make a
everybody else
and I
strike out
motion to
grounds
his
record
the constitutional
*4
proper
sequestration
we have been
the
Special ground.
for
trial
witness.”
10 of the motion
new
allege
not
the
sequestration
does
that movant invoked
rule of
the
and that
court refused
enforce it
witness
to
as to the
Peppers or
other
for the State.
the
any
And since
witness
sequestra-
that the accused
record
to
invoked the
fails
show
provided
ground
tion
for by
38-1703,
rule
Code
§
require
judgment
the motion does
a reversal of the
re-
on
fusing
trial. The burden is
asserts error
new
who
affirmatively
Campbell
to
it
the record.
Powell,
show
v.
829).
(58
presumption
There
(3)
is
768, 770
SE2d
206 Ga.
sequestration rule
the
judge would have enforced
the
(116
Smith,
it
Hamilton v.
6. following oc- mistrial based the defendant’s motion for a unsworn state- had concluded After the accused his currence: general “Do jury, ment the solicitor asked court: to that such get him?” Movant contends I to cross examine it con- prejudicial harmful to him because question was be veyed impression refusing to jury ground merit in this cross examined. There is no ground merit in 12 which motion. There is no also charge alleges jury failing that the court erred pris- part “The that, of Code Ann. which declares 38-415 § compelled questions cross- any oner not be to answer shall decline answer.” examination, proper he think should The accused was not cross examined. judge gave “The charge following his instruction: right jury court such
defendant has the to make to the proper. The statement as deem may his own defense under it shall have statement oath and is right give think it.” He only such force as the may jury: ‘hypothesis’ “The term as used also instructed infer- this connection refers to and reasonable means such light ences ordinary as are men ordinarily drawn their experience in every-day life.” The amended motion charge. assigns excerpts from the new error on these two ground neither excerpt Since afford erroneous, reversing judgment grant new trial. refusing to it came back deliberating case, the jury 8. While consid- judge what the foreman asked courtroom and given testimony Sammy Farmer, eration should accomplice “Now, for the State. He said: testified who had weight it credit as Gentlemen, give should such you you given you, charged charge in the entire which was you you evidence any his as other testimony receive should weight in- under the and credit give case ground given you.” Special structions has court alleges request respect- further instruction jury’s (the tes- its consideration Farmer’s ing alleged accomplice) made it incumbent on timony an *5 recharge accomplice’s jury the relative an court to law is toto. Since there no contention that fully charged correctly court had. not already and special ground on merit in subject, clearly there motion. opin- For in the preceding 9. stated divisions of this reasons judgment ion, complained of is not erroneous. Quillian Judgment concur, except All the Justices and affirmed. Grice, JJ., ruling dissent in Division who ond from judgment affirmance. Argued July September 13, 9, 19 6 5 1965 Decided Rehearing September 22, Larry Cohran, plaintiff error.
Albert B. J. Ar- Wallace, Driebe, Solicitor Charles General, Bubye Attorney General, thur K. Bolton, Jackson, G. Assistant Attorney General, contra. trial,
On State’s evidence and the state- ment, in substance show: Alabama; in Itala, that he testified lived
Sammy R. Farmer got Stephens, with Charles O’Neal into an automobile Ala- Kilgore Itala, Waldrop and Charles James Williams, Kilgore Waldrop; and in the rear seat between bama, and sat Georgia job had a to do they they that told him that known; he that they not do too well could because they get car started to out moved forward on the seat and the armrest of the door and told put Waldrop his hand Georgia he with them if did not want to come on to got home; see that he go job, they would through with College just Park, before arrived in told others job Supermarket him the was the Harris and that involved supermarket Kilgore; drove be p.m. robbery about them how the 4:30 or 5 told their getaway; would be committed would make how apartment went to 710 E. Columbia Avenue began “stage” all sat where down the crime and agreed Kilgore plans were for him and do the actual robbery that Williams, Stephens Waldrop were to front enter the Kilgore were to car; in the second Waldrop were Stephens and Williams, at which of the store *6 special that two them; they had go and wait for church committing the pistols for use in hats and two two coats, supermarket the about went to they Thursday robbery; that on rob not they reason did that p.m. closed and for 9 but was and apartment at all the it; were morning they that the next Friday that it; and supermarket rob go back the decided to and Waldrop Kilgore car, Williams, and night in one he and left supermarket they the other; that arrived at Stephens left to see whether closing time and waited minutes before 3 to 5 the register the cash and if the had been taken out money night; perpetrated that opened robbery safe but the was was Friday apartment the them at with Waldrop stay that did he Kilgore woke him told Saturday morning that and night; pockets full of and be headed money soon have his got apartment, that the Alabama; they outside toward when through robbery and going he was not with the Stephens told Kilgore drive in the car got Williams with and was told to place car; Stephens’ the other that at direction he to a drove the supermarket where could see the door of they front saw they door Kilgore enter the then and Williams thereof and just Stephens drove a church directed back of later stop; Kilgore stepped him to that out from Williams car; got they some bushes and that a brown behind bag them and wore the hats and with coats identified supermarket robbers; employees of as those worn that all apartment five of then went to the them where counted five money separate parts into divided get that he not see of it. Waldrop any did Peppers Captain E. E. and Detective Samuel M. Gadsden College Department tes- employed by the Park who are Police Apartments 29 and Colum- tified that had had 31 at E. 710 days immediately for about bia surveillance 10 Avenue under robbery; before the that on about Thursday commission of days robbery, they two before the defendant p.m., saw apartment Sammy Waldrop Stephens, outside Charles R. Farmer, O’Neal Williams and James that Kilgore; two
them had overcoats hands were in and their their hats companions that pockets; Waldrop arrested four and his apartment robbery; p.m. day about to 4:30 of the the same apartment bags, money seized two two pistols, two identified and some change; coats and that pistol Stephens’ recovered from trunk Cadillac.
Employees supermarket of the Williams and identified O’Neal Kilgore perpetrators Jack as robbery and identified overcoats, pistols hats and robbery used and which apartment were recovered from the staying by the police at the officers their arrests. defendant unsworn statement to the said his home in Tallapoosa, came to had some Ga., his
liquor; go him to them; asked Alabama with Itala, got Ala., Farmer; went R. *7 Farmer, Stephens, Kilgore, came Williams and all back himself apartment to Atlanta to an Avenue; E. Columbia some women were there a having drinking party; stayed drunk; that he couple days there a about half that when would invite him to ride he around, go them; always Saturday was and on car after all drinking night been morning, before, drove somewhere track passed over railroad but that out in seat; apartment came back to the he lay aon sofa and later went to the door and saw the other counting four give money; guess tried some, “I riding in the car with them and when found I out what I wouldn’t accepted have happened, it, I am because not a robber” but he later specifically accept said any did money. Justice, dissenting. respectfully dissent I from Di-
Grice, 4, vision properly which motion mistrial holds denied because defendant’s counsel did not at that time also complained move to have the witness’s answer excluded principle requires evidence. of no law know a prerequisite grant motion the defendant as a by to the of mis- where, here, gave as a witness for the State unsolicited The character issue. put the defendant's testimony which upon so hold. two cases relied do Quillian joins in that Mr. Justice to state I am authorized this dissent. v. HENDERSON.
23053. JOHNSON Argued July September 13, 9, 1965 1965 Decided September Rehearing 22, Zachary & Hunter, plaintiff W. E. Zachary, error. Harvey W. Armistead, Sr., McCurdy, Walter P. McCurcly, Candler & Harris, contra. registration case. It title Justice. This is land
Almand, Lot in the northwest corner of involved acre of land Land % proceed- County, 138 of the District DeKalb Ga. The 16th. ing originated petition her when Para Lee Henderson filed register years’ pos- claim title reason of her adverse Lot session acre the northwest corner Land of land % 138 of 16th District of DeKalb which she described County, Johnson, party named B. A. metes bounds. She Jr. as *8 asserting provisions Her under petition, claim to tract. 60-2, of Code Ann. Ch. referred to examiner. claim and asserted his thereafter intervened Johnson,
B. A. Jr. paper title four in his claim of title to the tract under links registered link in his name. prayed that title be each more or acre less property deed described % Land Lot of the District of the northeast corner of 16th description bounds County, metes and DeKalb persons. petitioner lands named The other than the of other grounds the intervention registration demurred to