Butler v. State, 28199

• Decision Date: 25 October 1973
• Docket Number: No. 28199,28199
• Citation: 231 Ga. 276,201 S.E.2d 448
• Parties: Emily T. BUTLER v. The STATE.
• Court: Georgia Supreme Court

Page 448

201 S.E.2d 448

231 Ga. 276

Emily T. BUTLER v. The STATE.

No. 28199.

Supreme Court of Georgia.

Oct. 25, 1973.

Syllabus by the Court

The conviction of the defendant for the offense of murder was authorized by the evidence and no error of law appearing, such conviction must be affirmed.

Emily T. Butler was indicted, tried and convicted for the murder of Betty Davis. The defendant shot the victim, her supervisor, at their place of employment four times at point blank range, and fired two other shots which, even at such close range, missed their target. The defendant's motion for new trial was overruled and the present appeal filed.

King & Phipps, C. B. King, Albany, Thomas M. Jackson, Macon, for appellant.

Richard Bell, Dist. Atty., Decatur, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Deputy Asst. Atty. Gen., Atlanta, for appellee.

NICHOLS, Justice.

1. The appellant's first contention is that the judgment of the trial court overruling her challenge to the array of the grand jury was error and the second contention is that the overruling of a challenge to the array of the petit jury was error. These contentions will be dealt with together.

Pretermitting the question of the timeliness of the challenge to the array of the grand jury, the evidence adduced did not demand a finding, even if such a finding was authorized, that either the grand or petit jury was unconstitutionally constituted. In this case, like the case of Hardwick v. State, 231 Ga. 181, 200 S.E.2d 728, the evidence may have authorized a finding that there had been no systematic inclusion of certain distinguishable and identifiable classes of persons, but it did not demand, if indeed it would have authorized, a finding that there had been a systematic exclusion of such group or groups of persons contrary to law. See also White v. State, 230 Ga. 327, 196 S.E.2d 849. The trial court did not err in overruling the challenges to the array of the grand and petit juries.

2. The trial court did not err in overruling the defendant's motion for a change of venue.

While 28 prospective jurors were excused for cause, the 48 jurors put upon the defendant were not disqualified from serving and although, in varying degree, a number of them had been exposed to pretrial publicity and some had formed some opinion, but no juror was put upon the defendant who indicated that he had formed any opinion which would not readily yield to evidence.

'The key rulings on such motions in this type of case, as gleaned from Morgan v. State, 211 Ga. 172(1), 84 S.E.2d 365 and cit., may be expressed thus: There is no inference of prejudice requiring a change of venue from the mere fact of the publishing of descriptive or even denunciatory matter, or even from the juror's having formed or expressed an opinion from rumor or from reports from newspapers or other news media; what is required is a showing that the juror had formed such a fixed or unchangeable opinion as to the guilt or innocence of the defendant as would not yield readily to the testimony. The record in the instant case indicates that, subsequent to the making of the motion, the 48 prospective jurors were each qualified by asking them whether they had read, heard or seen the allegedly prejudicial reports and that all of them stated under oath that, even if they had, they had an open mind about it and were not prejudiced in any way. The publicity was not prejudicial per se. Even where the evidence is in substantial conflict, the trial judge does not abuse his discretion in overruling a motion for change of venue. Chatterton v. State, 221 Ga. 424, 429, 144 S.E.2d 726.' Thacker v. State, 226 Ga. 170, 174, 173 S.E.2d 186, 190, (one dissent upon another ground).

3. The trial court refused to excuse one prospective juror for cause when she testified that she had a suspicion of the defendant's guilt and that if she were being tried she would not want to be tried by someone who had her present state of mind as it related to the suspicions she had regarding the guilt of the defendant.

The individual examination of this prospective juror consists of approximately 60 pages. The examination of the defendant's counsel was thorough and probing and the responses by the prospective juror were candid and frank.

She, like the defendant and the victim, was employed by the Internal Revenue Service; she had been under the supervision of the victim at one time for approximately six weeks and knew her as a supervisor, but not personally; she knew the defendant by sight; she had signed a card sent to the victim's family expressing sympathy and had...