McNeal v. State
| Decision Date | 11 February 1972 |
| Docket Number | No. 26904,26904 |
| Citation | 228 Ga. 633,187 S.E.2d 271 |
| Parties | Luther D. McNEAL v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The first enumerated error is the denial of the appellant's motion for new trial and amended motion, as set out in the subsequent enumeration of errors.
2. The evidence strongly supported the verdict.
3. It was not proper to ask a prospective juror the question:
'If you were asked right now to return a verdict without hearing any evidence from either side, what would your verdict be?'
4. The court did not abuse his discretion in granting the district attorney's request, after the rule of sequestration had been invoked, that the detective who investigated the case be allowed to remain in the courtroom during the trial of the case to assist him in the presentation of the case, and in allowing him to testify after other witnesses had been examined in his presence.
5. The court properly admitted the testimony of a young lady to show similarity of a rape committed upon her by the appellant with that committed upon the prosecutrix in this case, for the purpose of identifying him as the guilty person, and for showing motive, plan, scheme, bent of mind, and course of conduct.
6. The admission of testimony complained of in enumerated error 6, if error, was harmless.
7. The questions objected to as eliciting hearsay testimony sought only to verify that there was a conversation, but not the content thereof.
S. Richard Rubin, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Carter Goode, Creighton W. Sossomon, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, William F. Bartee, Jr., Asst. Attys. Gen., Atlanta, for appellee.
This appellant, Luther D. McNeal, was indicted, tried, and convicted of rape, and sentenced to 20 years in the penitentiary. From this verdict and sentence he appeals, and enumerates seven grounds of error.
1. The first error enumerated is the denial of his motion for new trial and amended motion, as set out in the subsequent enumeration of errors.
2. Enumerated error 2 alleges that the evidence was insufficient to support the verdict. The appellant contends that the State did not prove beyond a reasonable doubt the force and lack of consent which are essential elements of the crime of rape.
This contention is wholly without merit. There is evidence that: The prosecutrix, a young married lady, was waiting at a bus stop. The appellant came up, stood a few minutes, then approached her from behind, drew a pistol on her, marched her deep into the woods behind the bus stop, and had sexual relations with her against her will and in fear that he would shoot her if she resisted. He asked her if she knew the way back to the street, and when she said she did not, he escorted her to a place in slight of the bus stop and then disappeared in the woods. She went home, bathed, took a douche, called her husband, who came immediately, and he called the police. She described her assailant. Later the detective working on the case showed her several pictures. She identified the appellant as her assailant, and later picked him out in a line-up. The officer in charge of the appellant stated that the appellant on his way to the line-up said to him, 'She's going to pick me out.' The officer testified that after all had left the line-up, leaving only the appellant and him, the officer said, 'Luther, is she right or wrong?' and he said, 'She's right.'
There is no evidence that the victim voluntarily consented to sexual intercourse. She testified that the appellant held a pistol on her, threatened to kill her, struck her several times, pushed her back, and forcibly had sexual relations with her. The appellant in his sworn testimony denied that he had raped the prosecutrix, and denied that he had admitted to the officer that he raped her.
Byrd v. State, 187 Ga. 328, 337, 200 S.E. 671, 677. See also Melton v. State, 184 Ga. 343(3), 191 S.E. 91; Rider v. State, 195 Ga. 656(2), 25 S.E.2d 304.
The evidence strongly supported the verdict.
3. Enumerated error 3 alleges that the court erred 'in limiting the right of appellant's counsel to individually examine each juror as to any matter or thing which would illustrate any interest of the juror in the case.'
In examining the jurors the attorney for the appellant asked one juror, 'If you were asked right now to return a verdict without hearing any evidence from either side, what would your verdict be?' The court sustained an objection to the question, holding that it called for a conclusion and was not proper.
Code Ann. § 59-705 (Ga.L.1951, pp. 214, 215) provides that in all criminal cases the State and the defendant each have the right to an individual examination of each juror from which the jury is to be selected and '* * * is such examination the counsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the cause . . .'
In Hill v. State, 221 Ga. 65, 68, 142 S.E.2d 909, this court held that the trial court has a discretion to limit the examination under Code Ann. § 59-705 to questions dealing directly with the specific case and to prohibit general questions. See Curtis v. State, 224 Ga. 870, 871, 165 S.E.2d 150.
The question asked this juror did not concern any matter which would illustrate any interest of the juror in the cause, as provided by Code Ann. § 59-705. In examining a prospective juror, counsel for the accused should not ask technical legal questions in regard to the presumption of innocence, but should confine his questions to those which may illustrate any prejudice of the juror against the accused, or any interest of the juror in the cause. The question was not a proper one, and the judge did not abuse his discretion in sustaining the objection to it.
4. Enumerated error 4 alleges that the court erred in permitting the State's witness Detective Perkins to remain in the courtroom during the proceedings, after the rule of sequestration had been invoked by the appellant, and in...
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...long has been vested in the discretion of the trial court. Jarrell v. State, 234 Ga. 410, 420, 216 S.E.2d 258 (1975); McNeal v. State, 228 Ga. 633(4), 187 S.E.2d 271 (1972); Thomas v. State, 27 Ga. 287(8) We find no abuse of discretion by the trial court. Enumeration 2 is without merit. 3. ......
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