Boyers v. State

• Decision Date: 04 January 1945
• Docket Number: 15033.
• Citation: 33 S.E.2d 251,198 Ga. 838
• Parties: BOYERS v. STATE.
• Court: Georgia Supreme Court

33 S.E.2d 251

198 Ga. 838

BOYERS v. STATE.

No. 15033.

Supreme Court of Georgia

January 4, 1945

Rehearing Denied Feb. 9, 1945.

Syllabus by the Court.

The evidence authorized the verdict, and none of the special grounds dealt with in the opinion authorized setting aside the verdict and sentence.

Bill Boyers was convicted of the offense of robbery by force and was sentenced to the penitentiary for a term of not less than 18 and not more than 20 years, in accordance with the jury's recommendation. The facts in the record will be sufficiently disclosed in the opinion dealing with the various grounds of the direct exceptions and of the motion for new trial, except that it is thought proper to include here the testimony relating to the identification of the defendant as the assailant, which testimony is included in several of the grounds of the motion, and is as follows: J M. Barker testified on direct examination: 'I next saw him when the sheriff brought him down to my house on Saturday. This was on Thursday night and he brought him down to my house. I was in bed at the time. He was dressed at that time in coveralls. The sheriff brought him to my house and I told him, 'that is not the clothes he had on.' He asked me, would I know him if he had on the same clothes he had on that night. He went off somewhere and he came back with a jacket and a hat and I told the sheriff that was him. * * * That is Bill Boyers over there sitting by his lawyer. That is the man I refer to as having knocked me in the head and got my money. * * * I did not recognize him as being the defendant, Bill Boyers, on the second trip but recognized him being the same man. I recognized him as the same man the third time * * * did not recognize him as being the defendant, Bill Boyers. On the fourth time he came back I recognized him as the same man. That defendant is he. He is the same fellow that came in the store four or five times and the same fellow that had on these clothes. When I was hurt, I cried for help when he ran out. The Masonic Lodge was holding a meeting that night and a good many of my friends were in that meeting. They came to me in response to my plea for help. * * * In the presence of all the Masons that came in I announced that I could not identify the man. I said I knew how he was dressed. I told them that he was dressed in a pair of overalls and a leather jacket and white hat. * * * I know the person who hit me. That is him. * * * The sheriff brought him to my house. * * * He asked me, could I recognize him with the clothes on? and I said 'yes.' * * * As to whether I identified the man or the clothes, I identified the man. I identify the man. I identify the man and the clothes. Those clothes there are Bill Boyers'. They are the same ones [he] had on that night. * * * Then they put up the defendant, and I said, 'that looks like him.' I didn't tell the sheriff or the defendant in his presence in so many words, 'that is not the right man.' We [?]

said, 'If he had on the clothes he had on that night at the store, I could identify him.' * * * I didn't say the man they brought to me was not Bill Boyers. I said I couldn't exactly identify him that way. It was him. I swear to the jury that it was him. As to whether, so far as his person was concerned, I wasn't able to identify him, I told the sheriff I believed that was him. I knew him after he got the clothes on. As to whether I know the clothes or the man, I know both--I knew his face. I know it by the overalls. He had on that jacket and hat. I identify the clothes as being worn by the man who hit me.'

The following is the testimony of the sheriff, C. G. Meeks, on the subject of J. M. Barker's identification of the defendant and on the question of whether the hat and jacket were put on the defendant voluntarily, or whether it was done by compulsion of the sheriff: 'I am the sheriff of Upson County--was called when Lipsey's liquor store was robbed. Saw Barker at the clinic after the robbery. He gave me [a] description of the man who robbed him that night; he said he was a little heavy built, dark complexion and had on a jacket jumper and a pair of overalls and a light hat. He did not know his name. I came back to town and the police and myself all got out and tried to find who it might be. I did not have anybody to take before Mr. Barker that night. On Friday or Saturday morning I carried a young man down there. I don't know his name but he lived in my house on Jeff Davis Road. Mrs. Green rented the house to him; he was a slim fellow, and Mr. Barker said he was not the man; that he could not identify him; that he was not heavy enough. On Saturday morning I went and got a fellow by the name of Sams out at the Thomaston Mills, and carried him down there and he said, 'I don't think that is the man either--it don't look like him.' I went back then and went and got the defendant and carried him down there--that was between 11 and 12 o'clock and he looked at him in the house and I went back and I said, 'You know that is not the man.' He would not say for sure. I said, 'If he had on the clothes he had on that night, would you know him?' He said, 'I believe I would.' I came back, and Mr. Rogers he gave me the clothes and I carried Bill, me and James McDaniel. I carried Bill back down there, and got in the hallway of his house and put the clothes on him, and I walked in the room, and Bill Boyers walked in behind me, and Mr. Barker jumped up and said, 'That is the man.' He said, 'What man?' He said, 'You know you are the man that knocked me in the head.' We put the jacket ion him. We did not put the overalls on him. I got the overalls out at Bill Boyers' father's house on the Jeff Davis road where Bill lived, not on the Jeff Davis road but the highway just about that. I got two pairs of overalls--carried them to Mr. Johnnie Barker's house and took the newest looking pair and held them up and he could not identify them, and I held up the other pair and he said, 'that is the overalls he had on.' I was not present at the time the jacket was found down by the railroad; the bottom of the overalls was damp. I said that I put the clothes on the defendant at the time he was identified. As to the connection it had with that hat and jacket, I put the hat and jacket on him and just walked in the room in front of him and Bill walked in behind me. I did not put the overalls on him. I got a pair of overalls at Bill's house. They were identified by Mr. Barker.'

Cross-examination: 'I exhibited defendant to Mr. Barker--he could not identify him as the man, I cannot keep up with all the exact words that he said. He said he was not the right man. He failed to identify him--I carried him in and he failed to identify him until I carried him in the second time. I did not have the clothes on him the first time. * * * I brought the defendant back to town with me from Mr. Barker's house to where I got the clothes. I then carried him back to Mr. Barker's. I did not dress him up all the way before I went in. I did not dress him in Mr. Barker's presence. I don't remember whether I put the hat on him or whether the defendant put it on. * * * I think I held the jacket for him. I told him to put the jacket on. I don't remember whether I got one end on or whether I held his arm and placed it in there. My recollection is that he put the jacket on. * * * I would not say I did not hold it. I would not say I did or did not crook his arm in getting it on. * * * I gave the clothes to him and told him to put them on, but whether I held them for him or not, I don't remember. Judge, I did not force them on him. As to whether he put them on of his own accord, well, he was willing to put them on, the front if I held them. He did not object. He offered no objections to putting them on. I told him to put them on like

I would anybody else. If he had objected, I would not have made him put them on. I would not say whether I put the hat on or whether he put it on.'

The defendant made the following statement with reference to the sheriff putting the hat and jacket on him: 'Then they put some clothes on me, the sheriff did, he put them on himself, and carried me back in after he went in and talked to Mr. Barker, and he carried me in, and he said, 'Yes, that is the man.' * * * I was at home. The sheriff came and got me. * * * And the sheriff asked him if this was the man. He said, 'No, that is not the man.' Then the sheriff came back out in the hall, and the sheriff put the clothes on me. * * * Then the sheriff went out in the hall and got a little black snuff box and got some clothes and said, 'Put on these clothes,' and he put them on me. * * * I could not get the clothes on, and the sheriff came back and finished putting them on me. He carried me back in there. I stood at the door, and he said, 'That is the man."

There was also testimony of the chief of police, who knew the defendant, that he saw the defendant coming out of the liquor store where the robbery took place, around 5 o'clock in the afternoon before the robbery, wearing a torn leather jacket, identified by the tear, a pair of overalls, and a straw hat, which the witness had found stuck in some vines about 400 or 500 yards from the scene of the robbery and which he had turned over to the sheriff, and which hat and coat had been identified by the sheriff as being the clothing donned by the defendant to be finally submitted to the accused for identification. There was further testimony besides that of the victim, that the defendant had been seen about one hundred yards from, and proceeding toward, said liquor store at about 7:30 o'clock on the evening of the robbery, dressed in overalls; and that, at about 10 o'clock on the night of the robbery, a man was seen running from the...