Alexander v. State, 25202
| Decision Date | 12 June 1969 |
| Docket Number | No. 25202,25202 |
| Citation | 225 Ga. 358,168 S.E.2d 315 |
| Parties | Rudolph ALEXANDER v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. A stipulation that the witnesses and the evidence will be the same as presented on another trial does not carry with it, in the absence of an agreement, a stipulation that the objections and rulings of the court as to the admissibility of evidence will be considered as being the same so as to permit an appeal enumerating such rulings as error.
2. Contentions made in a brief but not included in the appellant's enumeration of errors present nothing for decision.
3. The enumeration of error complaining of the exclusion of jurors conscientiously opposed to capital punishment requires the grant of a new trial on the question of the punishment only.
4. Under the decision of the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, it was not error to overrule the defendant's motion to suppress from evidence the pistol taken from the defendant's person at the time of his arrest.
5. Enumerations of error not argued by the appellant are treated as abandoned.
Rudolph Alexander was convicted of the murder of Thomas William Wright and sentenced to be electrocuted. A motion for new trial was overruled and the present appeal filed. On the call of the case, the defendant having filed a challenge to the array, a stipulation was entered into in which it was agreed that the evidence received on a challenge to the array in another case 'would apply in the present case as the witnesses produced by the defense would testify as to the same matters and the evidence built by the State would also be stipulated as to be the same.' The trial court then overruled the challenge to the array and after the roll call of the jury, counsel for the defendant stated: 'Before we proceed to select a jury, I want to object at this point for the record to the disqualification and exclusion of any juror who expresses himself as being opposed to capital punishment.' A jury was then selected and the trial proceeded which resulted in the defendant's conviction.
Lionel E. Drew, Jr., Aaron Kravitch, Savannah, for appellant.
Andrew J. Ryan, Jr., Dist. Atty., Savannah, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Larry H. Evans, Atlanta, for appellee.
1. The sole stipulation with reference to testimony on a previous trial being used in determining the challenge to the array was that the witnesses and the evidence adduced would be the same. There was no stipulation that the objections made by the attorneys trying the first case and rulings of the court there made would apply on the second trial. In Mobley v. G. S. Baxter and Company, 143 Ga. 565, 85 S.E. 859, it was held that a stipulation that interrogatories might be used rather than calling the witness to testify would not waive the right to object to conclusions included therein. On the trial of the present case, there were no objections made to any testimony included or excluded on the trial where the evidence was adduced, and the stipulation did not include an agreement that the subjections made and the rulings of the trial court would be the same. Thus, the enumerations of error complaining of rulings made by the trial court on another trial in response to objections by a different attorney are not questions to be decided in this case.
2. While it is contended in the appellant's brief that the ruling of ...
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