Banks v. State

• Decision Date: 13 July 1976
• Docket Number: No. 30830,30830
• Citation: 237 Ga. 325,227 S.E.2d 380
• Parties: Jerry BANKS v. The STATE.
• Court: Georgia Supreme Court

Page 380

227 S.E.2d 380

237 Ga. 325

Jerry BANKS v. The STATE.

No. 30830.

Supreme Court of Georgia.

July 13, 1976.

[237 Ga. 328] Hudson John Myers, Atlanta, for appellant.

Edward E. McGarity, Dist. Atty., McDonough, Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.

JORDAN, Justice.

The defendant, Jerry Banks, was charged with committing two offenses of murder on November 7, 1974; he was indicted by a grand jury of Henry County, Georgia on January 13, 1975, and following a trial by jury the death sentence was imposed on each count on January 31, 1975. On appeal to this court, the conviction was reversed. See Banks v. State, 235 Ga. 121, 218 S.E.2d 851 (1975). Following his new trial on November 17 and 18, 1975, the appellant was again convicted of both murders and again sentenced to death on each count. Appellant is again before this court on appeal and for mandatory review of the death sentence imposed.

The evidence presented by the state in the second trial was essentially the same as that presented at the first trial and summarized in Banks v. State, supra, except that appellant offered the testimony of Andrew Lake Eberhardt who corroborated the appellant's pre-trial statements to the extent that he had been flagged down by the appellant and asked to report to authorities that he had located two bodies in the woods. The appellant did not offer the testimony of Grace Slaughter concerning the appellant's whereabouts on the day of the offenses or the testimony of Perry Banks, his brother, that he had hunted in the area a week before the offenses and after the offense as he did in the first trial.

1. The appellant's first enumerated error is that the verdict and sentence are strongly against the weight of the evidence.

This constitutes the appellant's main attack on his conviction and sentence. After a thorough review of the evidence presented we are satisfied that though circumstantial in nature, the evidence presented was sufficient to justify a jury to find the appellant guilty of both offenses in accord with Code Ann. § 38-109.

In Harris v. State, 236 Ga. 242, 245, 223 S.E.2d 643 (1976) this court traced the development of Code Ann. § 38-109 and concluded that the correct rule for determining the sufficiency of the evidence in convictions based entirely on circumstantial evidence is that 'where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding unless the verdict is unsupportable as a matter of law.'

The jury that convicted Jerry Banks was charged as to the state's burden of proof beyond a reasonable doubt and was charged as to the reasonable hypothesis rule. We cannot say that the verdict is unsupportable as a matter of law.

Enumeration 1 is without merit.

2. The appellant next alleges it was error to force the appellant to trial on a capital felony without re-indictment and against his demand for indictment and to place the appellant in jeopardy of life and limb twice for the same offense.

Appellant filed a 'Demand for Indictment' in the trial court on November 17, 1975, the day his second trial commenced.

In his brief the appellant cites the Fifth Amendment to the United States Constitution and Taylor v. State, 110 Ga. 150, 35 S.E. 161 (1900). The appellant gives no indication of how the 5th Amendment has been violated and the Taylor case concerned a subsequent trial on a separate indictment for a totally distinct offense. (See Taylor v. State, 105 Ga. 846, 847, 33 S.E. 190 (1898)). We find no violation of the appellant's rights in the record or transcript in the trial court and his new trial was not barred by Code Ann. § 26-507 inasmuch as it specifically provides in part '(d) a prosecution is not barred within the meaning of this section . . . (2) if subsequent proceedings resulted in the invalidation, setting aside, reversing, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.' There was no such finding by this court in reversing the appellant's first trial.

These enumerations are likewise without merit.

3. In our sentence review we have considered the aggravating circumstances found by the jury and the evidence concerning the crimes introduced in court.

We have reviewed the sentences as required by Ga.L.1973,[237 Ga. 327] p. 159, et seq. (Code Ann. § 27-2537(c)(1-3)), as we did in Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974), and in each subsequent case involving the death penalty under this statute. We conclude that the sentences of death imposed here were not imposed under the influence of passion, prejudice, or any other arbitrary factor.

On each count the jury found the following statutory aggravating circumstance: The offense of murder was outrageously and wantonly vile, horrible, and inhuman in that it involved torture to the victim or depravity of the mind on the part of the appellant in that the death was caused by two shotgun blasts. (Code Ann. § 27-2534.1(b)(7)).

The evidence indicates that each victim was shot in the back while standing and then shot in the head as they fell to the ground by a single barrel shotgun, requiring time for the reloading after each shot, authorizing the jury's finding of torture to at least one of the victims as well as showing depravity of mind of the appellant. The evidence supports the jury's findings of the statutory aggravating circumstance on each count.

Code Ann. § 27-2537 requires the trial judge to submit a report in the form of a questionnaire prepared by this court. We note in this report that the appellant was convicted of murder in 1970 and sentenced to life imprisonment. Upon appeal this court reversed on the failure of the trial court to charge the law of voluntary manslaughter (Banks v. State, 227 Ga. 578, 182 S.E.2d 106 (1971)). The appellant then entered a plea of manslaughter and was sentenced accordingly. While this prior record would not support a finding of an aggravating circumstance under Code Ann. § 27-2534.1(b)(1) (prior record of conviction for a capital felony), it can be taken into consideration by this court under our sentence review which requires us to consider 'both the crime and the defendant.' Code Ann. § 27-2537(c)(3).

We have compared the evidence and sentences in this case with similar cases contained in the appendix attached to this opinion. Jerry Banks' sentences to death are not excessive or disproportionate to the penalty imposed in similar cases considering both the crimes and the defendant.

Judgment affirmed.

All the Justices concur, except HALL, J., who concurs specially, INGRAM and HILL, JJ., who concur in the affirmance of the judgment of conviction but dissent as to the sentence of death, and GUNTER, J., who dissents.

APPENDIX

Similar cases considered by the court: Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970); Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971); Watson v. State, 229 Ga. 787, 194 S.E.2d 407 (1972); Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 (1972); Sirmans v. State, 229 Ga. 743, 194 S.E.2d 476 (1972); Scott v. State, 230 Ga. 413, 197 S.E.2d 338 (1973); Whitlock v. State, 230 Ga. 700, 198 S.E.2d 865 (1973); Kramer v. State, 230 Ga. 855, 199 S.E.2d 805 (1973); Bennett v. State, 231 Ga. 458, 202 S.E.2d 99 (1973); Howard v. State, 231 Ga. 186, 200 S.E.2d 755 (1973); Hunter v. State, 231 Ga. 494, 202 S.E.2d 441 (1973); Morgan v. State, 231 Ga. 280, 201 S.E.2d 468 (1973); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974); Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974); Floyd v. State, 233 Ga. 280, 210 S.E.2d 810 (1974); Chenault v. State, 234 Ga. 216 215 S.E.2d 223 (1975); Smith v. State, 236 Ga. 12, 222 S.E.2d 308 (1976); Mason v. State, 236 Ga. 46, 222 S.E.2d 239 (1976).

HALL, Justice (concurring specially).

A question has been raised as to the constitutionality of the sole aggravating circumstance found by the jury in the instant case: 'The offense of murder . . . was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.' Code Ann. § 27- 2534.1(b)(7). Similar provisions are found in the Florida death statute ¹ and in the Model Penal Code. ²

The United States Supreme Court upheld the Florida statute based upon the interpretation given by the Florida Supreme Court: 'That Court has recognized that while it is arguable 'that all killings are atrocious, . . . still we believe that the Legislature intended something 'especially' heinous, atrocious, or cruel when it authorized the death penalty for first degree murder.' Tedder v. State, 322 So.2d 908, 910 (1975). As a consequence, the Court has indicated that the . . . statutory provision is directed only at 'the conscienceless or pitiless crime which is unnecessarily torturous to the victim.' State v. Dixon, 283 So.2d 1, 9 (1973). See also Alford v. State, 307 So.2d 433, 445 (1945); Halliwell v. State, 323 So.2d 557, 561 (1975). We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases.' Proffitt v. Florida, -- U.S. --, 96 S.Ct. 2960, 49 L.Ed.2d -- (1976).

The same construction can be given the Georgia statute, and applying that test to the facts in this case (see majority opinion), these two murders were especially outrageous, wantonly vile, horrible, inhuman and manifested exceptional depravity in the manner in which they were executed. In my opinion, this Court has not given Code Ann. § 27-2534.1(b)(7) an open-ended construction. Gregg v. Georgia, -- U.S. --, 96 S.Ct. 2909, 49 L.Ed.2d -- (1976); McCorquodale v. State, 233 Ga. 369 (211 S.E.2d 577) (1974). In the words of the Florida Supreme Court, 'the meaning of such...