Bell v. State

• Decision Date: 09 July 1971
• Docket Number: No. 26576,26576
• Parties: Wallace Russell BELL v. The STATE.
• Court: Georgia Supreme Court

Page 357

183 S.E.2d 357

227 Ga. 800

Wallace Russell BELL v. The STATE.

No. 26576.

Supreme Court of Georgia.

July 9, 1971.

Syllabus by the Court

1. The evidence authorized the verdict.

2. Contended errors in the trial arising out of the inexperience of the defendant's counsel, are not passed on, as they will not likely recur on the new trial granted on the ground of newly discovered evidence.

3. 'The evidence to sustain the verdict not being altogether satisfactory, there being some evidence of an alibi, and the newly discovered evidence consisting in part of the affidavit of one who deposed, after his own conviction and after the trial of the accused, that deponent and another person (also convicted), not the accused, committed the crime, that the accused was not present when it was committed and had not participated in it, and these facts not having been disclosed by the deponent until after the accused had been convicted and sentenced, a new trial should have been granted.'

George L. Howell, Peter E. Rindskopf, Atlanta, for appellant.

Ben F. Smith, Dist. Atty., George W. Darden, III, Marietta, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive, Asst. Atty. Gen., Courtney Wilder Stanton, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.

FELTON, Justice.

Wallace Russell Bell was indicted, tried and convicted of the offense of armed robbery and sentenced to 15 years' imprisonment, from which judgment, as well as the overruling of his amended motion for a new trial, he appeals.

1. The evidence authorized the verdict. Two eyewitnesses identified the appellant as one of two persons who took at gun point money belonging to a Mark Inn Motel in Cobb County on July 19, 1970. Additionally, fingerprints identified as the appellant's were found on the counter of the motel office. There was no variance between an allegation in the indictment that the money was taken from the named cashier of the motel and proof that it was the property of the motel in the custody of such agent. Spurlin v. State, 222 Ga. 179(7), 149 S.E.2d 315 and cit. Nor was there a fatal variance between the allegation that the accused took $1,034 and proof that all of the money at the motel was taken. Under Code Ann. § 26-1902 (Ga.L.1968, pp. 1249, 1298; Ga.L.1969, p. 810), the offense of armed robbery is committed merely by the armed taking of the 'property of another,' regardless of whether its value is great or small. Even under our former criminal code it was not essential to prove the exact value of the items, but only that the items had some value. McCrary v. State, 96 Ga. 348, 23 S.E. 409. 'In criminal law an unnecessarily minute description of a necessary fact must be proved as charged, but an unnecessary description of an unnecessary fact need not be proved.' Hall v. State, 120 Ga. 142(1), 47 S.E. 519. Even if the exact amount of money was a necessary fact, moreover, proof that all of the money at the motel was taken is sufficient to meet the criterion set by the U.S. Supreme Court and approved by this court. "The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by superise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.' (Citations omitted). Berger v. United States, 295 U.S. 78, (82,) (55 S.Ct. 629, 79 L.Ed. 1314).' De Palma v. State, 225 Ga. 465, 469, 169 S.E.2d 801, 805. Enumerated errors 1 and 2 are without merit.

2. Enumerated errors 3, 4 and 6 all relate to contended errors arising from the fact that the accused was represented during the initial part of his trial solely by his employed counsel, whom the trial judge found to be inexperienced, appointing an additional attorney to assist in the defense. It is not necessary to pass on each of these grounds, inasmuch as they are not likely to recur on the next trial of the case, which is granted on the ground of newly discovered evidence in division 3, hereinafter.

3. Enumerated error 5 is the overruling of the appellant's 19th ground of his motion for a new trial, which alleges as follows: '19. Because, as movant contends, new and additional evidence has come to movant's knowledge since the trial, which could not have been discovered sooner, which evidence is so material that it would probably produce a different verdict should a new trial be granted.

'The evidence adduced at trial by the State tended to show the following sequence of events:

'On the morning of July 19, 1970, at 2:45 a.m. (Tr., p. 170), Sergeant R. E. Davis and Lieutenant Melvin Ferguson of the DeKalb County Police Department were robbed while on duty as security officers at the Executive Park Motel located near Interstate 285 and North Druid Hills Road in DeKalb County. (Tr., pp. 166, 174) Sergeant Davis was robbed of his service revolver, a Smith and Wesson .357 Magnum (Tr., pp. 65, 167, 168), and Lieutenant Ferguson was robbed of an unidentified service revolver and a watch. The robbers were described by Sgt. Davis as being two in number, one 'about 5 9 to 11 , medium afro haircut, he had a small mustache. The other one was about 5 9 slender build, he was high-yellow.' (Tr., p. 167) Lt. Ferguson described the perpetrators as follows: 'he was five foot nine or ten, and light colored, had sideburns with a goatee and semi-afro haircut, had on dark clothes.' (Tr., p. 176); the other one he only saw from a distance and described as being approximately 6 feet tall and slim (Tr., p. 176). Neither of these officers could identify the defendant as being one of the two robbers.

'At between 3:30 and 4:00 a.m., the Mark Inn, Six Flags Motel, situated in Cobb County, was robbed by two Negro males of the same approximate descriptions. During the course of the robbery, the .357 Magnum Smith and Wesson revolver taken from Sgt. Davis in DeKalb County approximately an hour thereto, was left on the counter of the Mark Inn. Thus, the two robberies are connected in that the gun taken in the first robbery was used in the second one within the time period of approximately one hour, the distance between the two sites being approximately 25 miles.

'Subsequent to the conviction and sentencing of movant, one Herschell Andrew 'Butch' Thomas was extradited from the State of New York to DeKalb County, Georgia to answer charges lodged against him in said county, including a charge of armed robbery of the aforementioned police officers at the Executive Park Motel. In connection therewith, Thomas gave a statement to the DeKalb County police in which he admitted the robbery and (sic) the Executive Park Motel, and the robbery of the Mark Inn, Six Flags Motel, the latter being the robbery of which the movant was convicted and sentenced to 15 years' imprisonment. Thomas, in his statement, admitted that he and one Hayward 'Hawk' Waller committed the offense for which movant was convicted, and that the movant had nothing to do with said robbery, and further that he does not know the movant personally.

'Thomas pleaded guilty to the Executive Park robbery, the court being satisfied that his confession was given freely and voluntarily, and was sentenced to 15 years' imprisonment. Waller also entered a plea of guilty to the Executive Park robbery and was given the same sentence, based also upon his confession.

'Thomas is approximately the same height, weight and complexion of (sic) the movant. Waller is a Negro male with a light complexion, approximately 5 10 tall and weighs approximately 145 pounds.

'In light of this new evidence, which was discovered subsequent to movant's conviction and sentence, justice demands that a new trial be granted as the likelihood of a verdict of acquittal of the movant appears probable, as more fully appears from the affidavit of movant's attorney attached hereto.' (Emphasis supplied).

In addition to a copy of Thomas' confession to the DeKalb County Police, attached as an exhibit, this ground of the motion for a new trial was supported by affidavits to the following effects: Appellant's appointed counsel, Cochran, deposed that Thomas had been a fugitive from justice during the appellant's trial and that his confession had not been made until approximately 3 months after the appellant's trial. The affidavits of appellant's employed counsel, McMichen, and the appellant himself are to the same effect, with the appellant deposing his belief that if he were granted a new trial, the testimony of Thomas would probably result in appellant's acquittal. Appellant's subsequently retained counsel, Howell, deposed that Thomas' statements could not be obtained by him at that time, but that he had subpoenaed DeKalb County police officers to appear at the hearing on the motion and to produce such statements, and that he had talked with Thomas, but could not reveal the substance of their conversation since the charge of robbery (of which the appellant was convicted) was then pending against Thomas in Cobb Superior Court. In a subsequent affidavit, Howell deposed that, in Thomas' trial in Cobb Superior Court, the judge had determined, after a hearing held out of the jury's presence, that his aforementioned confession had been freely and voluntarily given; that the confession implicated Waller and did not mention appellant Bell; and that there was no evidence at either Bell's or Thomas' trials that there were more than two participants in the robbery of which Bell was convicted. Thomas deposed that he was addicted to narcotics and for that reason participated in the robbery of which Bell was convicted; that his only partner in said crime was Waller; that, after the robbery, he fled to New York and was extradited to DeKalb County, where he learned that Bell had been convicted of a robbery he had not committed, so he had given the statement,...