Berry v. State

• Decision Date: 22 June 1935
• Docket Number: No. 24850.,24850.
• Citation: 180 S.E. 635,51 Ga.App. 442
• Parties: BERRY. v. STATE.
• Court: Georgia Court of Appeals

51 Ga.App. 442

180 S.E. 635

BERRY.

v.STATE.

No. 24850.

Court of Appeals of Georgia,

Division No. 1.

June 22, 1935.

Syllabus by the Court.

1. Under the indeterminate sentence law (Ga. Laws 1919, p. 387), the jury alone has the authority to fix the extent of the punishment to be inflicted in felony cases tried before it; and where under the Penal Code of 1910, § 1068 (Code 1933, § 27-2511), It is provided that the maximum punishment is to be Inflicted in the event the accused has been convicted of a prior felony, such fact becomes a part of the offense charged, and it is necessary to allege and prove the prior conviction. A written admission made to the court of the allegation in the indictment of such prior conviction by the defendant does not make it necessary to strike this allegation from the indictment nor make evidence of such fact inadmissible.

2. There was no error in receiving in evidence a letter signed by Theo. Berry, which was given to the officers by the father of the defendant as having been from defendant to defendant's mother. Several witnesses accustomed to identifying signatures and handwriting, after comparing the handwriting of Berry, testified that the letter was written by the same person.

3. The evidence supported the verdict and no error of law appears.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

T. R. Berry was convicted of attempt to commit robbery by intimidation, and he brings error.

Affirmed.

Etheridge, Belser, Etheridge & Etheridge, of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., and J. Walter Le Craw, both of Atlanta, for the State.

GUERRY, Judge.

T. R. Berry, Olin Smith, and M. L. Craddock were jointly indicted, charged with the offense of attempt to commit robbery by intimidation. In the indictment, each of them was charged with having been convicted of certain described felonies theretofore. It was alleged that T. R. Berry, previous to committing the above described offense, has been convicted and sentenced for a felony, having been convicted January 27, 1926, in Fulton superior court indictment No. 25310, of the offense of murder, a felony; the charge being that he did in said County of Fulton, unlawfully and with malice aforethought, kill and murder one W. H. Cheek by then and there shooting him with a pistol, upon which conviction the accused was sentenced for a felony." Olin Smith had pleaded guilty to the charge, and M. L. Craddock had been found guilty by a jury. After the jury had been impaneled, in the trial of Berry, they were sent out of the room on motion of his counsel, and the following motion was presented: "Now comes the defendant, T. R. Berry, and after pleading not guilty to the offense charged in the foregoing indictment, and in the absence of the jury impaneled to try the said case, and moves the court as follows: (1) Defendant admits that he is the same T. R. Berry referred to in said indictment as having been previously convicted and sentenced for murder, and defendant admits that he was in 1926 convicted of the murder of W. H. Cheek, and that on such conviction he has served in the penitentiary of the State of Georgia until in 1933 he was duly pardoned by the Honorable Eugene Talmadge, Governor of the State of Georgia. (2) Defendant admits that, in view of the facts and admissions made above, in the event of a verdict of guilty in the within case, the maximum sentence therefor, to wit: not less than four nor more than four years in the penitentiary is mandatory. Wherefore, defendant prays and moves that such portion of the indictment in the within case as refers to his previous eonviction and sentence be stricken and so covered by pasting blank paper thereon, or in other manner obliterated as to be invisible to the jury impaneled to try the within case, and further that the judge shall charge the jury in the within case that in the event they find the defendant guilty, they shall fix his sentence at not less than four nor more than four years in the penitentiary, and that all evidence in anywise appertaining to defendant's former trial, conviction, or sentence be excluded."

The evidence for the state disclosed that on the morning of Friday, April 27, 1934 W. M. Gilleland drove his car to the Fulton National Bank of Atlanta on Marietta street, parked his car in front of the bank and went inside to get the pay roll for his employer. He drew $368 from the bank and had it in a sack or bag. Coming our of the bank he put the money in the car on the front seat. When he first parked his car, he noticed a green sedan car parked beside him, occupied by three men. When he came back out of the bank, two were in the car and the third man walked around to get into the car parked beside his own. Gilleland got into his car, backed out from the curb and drove down Marietta street across Five Points and down Decatur to Pryor street where he turned south along Pryor crossing to Wall street, and across Alabama street until he came to Hunter street where he was halted by a red traffic light. A policeman standing in front of the Fulton National Bank testified that the car containing the three men backed out immediately behind Gilleland's car and followed it down Marietta street. When Gilleland stopped at the red light at the intersection of Pryor and Hunter streets, two cars were between him and the car containing the three men. One of the men, later identified as Olin Smith, got out and went to Gilleland's car and stepped in and ordered him to "move over, " holding the steering wheel with one hand and in the other holding a.45 Colt automatic pistol. Smith stuck the pistol in Gilleland's side when he ordered him to "move over, " and Gilleland immediately struck Smith with one hand and grabbed the pistol with the other and they both struggled out of the car into the street and across the street, Gilleland in the meantime shouting for help. The struggle continued for some time, but no one came to his aid. The green car which had been parked at the Fulton National Bank and which had brought Smith to this scene drove on down to the corner of Hunter and Pryor street, and there the door was opened and Smith jumped in, and the door was closed and the car turned up Hunter street going at a very fast speed. Gilleland had taken the pistol from Smith and Smith had been unable to get the sack of money which was in the car. Gilleland did not recognize the other two men in the car besides Smith. The officer in front of the bank recognized Smith and Craddock, but was unable to identify the third man in the car, other than that he was a clean shaved young man. The same afternoon the green automobile used by the three men was recovered abandoned over near the Terminal Station. This car was the property of T. R. Berry, the defendant. Two or three days after the attempted robbery the police officers obtained from the defendant's father a letter, postmarked in Atlanta and addressed to Mrs. J. M. Berry, the mother of the defendant, dated April 27, the day of the crime, as follows: "Dear Mother: --No doubt you will be glad to hear from me. Ge, I have exper-ance something that I have never before. I was going down Blvd. to see a girl when too men stopt me. And made me drive to a bank on Marietta St. Then they said to follow a ford So there was nother else for me to do But to do so as they said, as they had too guns on me. Well one man got out and tryied to hold up a man in a ford. The other man sat beside me with a gun on me. So when they fail to get their man they made me drive to the railroad. So tell Dad to go to the Terminal Station and look for his car. They have promise to let me go as soon as they get out of town So I will let you hear from me as soon as I can Please tell Dad not to say anything about this until you hear from me again. Because they are nice to me. And I think I will be alright soon. We leaf the car. And they made me go with them to the Apt. They are watching me write this letter So don't worry because I will let you hear from me as soon as I can. Always, Your son, Theo Berry. P. S. Please tell Dad not to say anything to any one. Will let you hear from me as soon as I can. Always, Theo Berry." A number of witnesses, after being shown a bond and other writings executed by the defendant upon comparing them to the letter, testified that the letter was written by Berry. Berry some weeks after the crime was arrested in Pensacola, Fla., and Smith was arrested at Mobile, Ala. Other evidence for the state showed that on the Sunday preceding the robbery on Friday, that Berry, Smith, and Craddock were together in an apartment in Atlanta. The defendant in his...