213 S.E.2d 829 (Ga. 1975), 29278, Moore v. State

Docket Nº:29278.
Citation:213 S.E.2d 829, 233 Ga. 861
Opinion Judge:PER CURIAM.
Party Name:William Neal MOORE v. The STATE.
Attorney:[233 Ga. 866] Hinton R. Pierce, Augusta, for appellant. H. Reginald Thompson, Dist. Atty., Swainsboro, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.
Case Date:February 12, 1975
Court:Supreme Court of Georgia

Page 829

213 S.E.2d 829 (Ga. 1975)

233 Ga. 861

William Neal MOORE

v.

The STATE.

No. 29278.

Supreme Court of Georgia.

February 12, 1975

Rehearing Denied March 4, 1975.

Page 830

[233 Ga. 866] Hinton R. Pierce, Augusta, for appellant.

H. Reginald Thompson, Dist. Atty., Swainsboro, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

Following a plea of guilty, conviction, and sentence of death for murder and armed robbery this case is here by appeal and for mandatory review of the death sentence imposed. The appellant William Neal Moore, was charged with committing the offenses of murder and armed robbery on April 2, 1974, was indicted by a grand jury in Jefferson County on May 13, 1974, and entered a plea of guilty to both charges and waived trial by jury on June 4, 1974.

After the appellant's plea of guilty as entered, the prosecution presented the testimony of the doctor who performed the autopsy on the victim's body, two investigative agents and the sheriff who investigated the offenses. The defense presented testimony by the appellant and members of his family. Thereafter, the trial judge found aggravating circumstances and imposed the death sentence.

The testimony and other evidence revealed that the appellant had been a member of the U.S. Army, and former military policeman, where he met George Curtis, a nephew of the victim Fredger Stapleton. Curtis told him about his uncle Fredger Stapleton having money and showed him where he lived. In the words of the defendant, 'We planned this, he wanted to burn his uncle up, he would get the money and burn him up in the house, and we went over there and Curtis got scared after he went into the house, that was the first time, we was drinking, we had been drunk . . .

Page 831

we went over to the house, we went to the back door, and we got in between one of the bedrooms and the front room, there was a locked door, we left and went back over to Curtis' house. Curtis, he left and I went back over there . . .'

In the late evening of April 2, 1974, appellant apparently re-entered the Stapleton home through a [233 Ga. 862] bedroom window. After gaining entrance he was surprised by Stapleton who proceeded to fire a shotgun at him. Appellant fired all five shots in his .38 caliber pistol at Stapleton. Stapleton subsequently died from two bullet wounds in the chest. After shooting Stapleton, appellant proceeded to remove two billfolds from the victim's pockets and took the victim's shotgun. Appellant then left through the front door of the Stapleton home and walked to his automobile which was parked by a laundromat nearby. He proceeded to his residence, burned the victim's wallets and disposed of the shotgun. The money taken from Stapleton amounted to $5700, which appellant subsequently surrendered to officers. Evidence at the scene implicated the appellant and corroborated his statement.

Appellant denied any intention of killing Stapleton: 'I didn't have no intention of killing him. When I went in there, he come out there with a shotgun and hit me in the leg, it scared me, made me shoot him, and I'm sorry for what I did, and ask for mercy of the Court.' Held:

1. Appellant's first enumeration of error is that 'The imposition and carrying out of the death penalty in accordance with the present Georgia death penalty statute is unconstitutional and in violation of the Eighth and Fourteenth Amendments of the United States Constitution.'

In support of this contention, appellant argues that the discretion permitted by the death penalty statute leaves room for arbitrariness, thus rendering the statute unconstitutional as a violation of equal protection.

Although the appellant plead guilty, the record is clear that he reserved his constitutional objections at the trial level. In Coley v. State, 231 Ga. 829, 204 S.E.2d 612, this court addressed the issue of discretion in the Georgia death penalty statute (Code Ann. §§ 26-2001 and § 27-2534.1 et seq.) in the face of the Eighth and Fourteenth Amendments to the Constitution of the United States as those amendments were construed and applied by the Supreme Court of the United States in Furman v. Georgia and Jackson v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. We there noted that 'it is not discretion per se which must be condemned, but it is unguided discretion [233 Ga. 863] that does not 'produce even-handed justice." 231 Ga. p. 834, 204 S.E.2d p. 616. We found there that 'the system of dispensation of the death penalty provided by the statute does not offend the principles of decision of the U.S. Supreme Court in Furman and Jackson' 231 Ga. p. 835, 204 S.E.2d p. 616. Although we now find appellant's contention to be without merit, the constitutionality of the application of the death penalty to him in the instant case must be determined upon review of the sentence by this court pursuant to the current Georgia statute. Code Ann. § 27-2503(b), as amended by Ga.L.1974, pp. 352, 357, was not in effect and thus is inapplicable to this case.

The appellant further argues that the death penalty constitutes cruel and inhuman punishment in violation of the prohibition of the Eighth Amendment to the U.S. Constitution.

We have found no case where a majority of the Supreme Court of the United States or of this court has held that the death penalty constitutes cruel and unusual punishment.

In the Furman and Jackson cases, Chief Justice Burger, dissenting noted 'that only two members of the court, Mr. Justice Brennan and Mr. Justice Marshall, have concluded that the Eighth Amendment prohibits capital punishment for all crimes and

Page 832

under all circumstances.' See also Coley v. State, 231 Ga. 829, 204 S.E.2d 612, supra; House v. State, 232 Ga. 140, 205 S.E.2d 217; and Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12.

2. (a) The appellant contends as to the sentence that the imposition of the death penalty in this case is disproportionate to the sentence imposed in other similar cases.

Appellant cites two trials, not a part of the record of this trial, which he alleges are similar to the facts in the instant case wherein the death sentence was not imposed. Although they were not considered by the trial judge and cannot be considered by this court, some comment is appropriate concerning this court's duty to compare the sentence in this case with that imposed in similar cases. As we view the court's duty in light of the Furman and Jackson cases and the statutory provisions designed by the Georgia legislature to meet the objections of those [233 Ga. 864] cases, this court is not required to determine that less than a death sentence was never imposed in a case with some similar characteristics. On the contrary, we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not 'wantonly and freakishly imposed,' as stated by Justice Stewart in his concurring opinion in the Furman and Jackson cases (408 U.S. 238, 310, supra, 92 S.Ct. 2726, 33 L.Ed.2d 346). We are endeavoring to do our duty under the standards provided.

(b) It is next asserted that there was no aggravating circumstance in this case because a person cannot be guilty of armed robbery if the victim is not conscious or alive at the time of the robbery.

Code Ann. § 26-1902 provides: 'A person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon.' Ga.L.1968,...

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