Callahan v. State

• Decision Date: 17 November 1972
• Docket Number: No. 27255,27255
• Citation: Callahan v. State, 194 S.E.2d 431, 229 Ga. 737 (Ga. 1972)
• Parties: Matthew CALLAHAN, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 431

194 S.E.2d 431

229 Ga. 737

Matthew CALLAHAN, Jr. v.The STATE.

No. 27255.

Supreme Court of Georgia.

Nov. 17, 1972.

Syllabus by the Court

1.The verdict is supported by the evidence of the motion for new trial are without merit.

2.The appellant was not entitled to forty peremptory challenges in his trial based upon two indictments.

3.Admission in evidence of the victim's recorded voice transmission was not error.

4.Introduction in evidence of confessions by the appellant was not improper.

5.Testimony as to use of an automobile tag registration did not put the appellant's character in evidence.

6.Sentence of death by electrocution as presently imposed and carried out is a cruel and unusual punishment prohibited by the United States and Georgia Constitutions.

Reuben A. Garland, Edward T. M. Garland, Hester & Hester, Frank B. Hester, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carter Goode, Joel M. Feldman, John Nuckolls, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Thomas W. Greene, Deputy Asst. Atty. Gen., Atlanta, for appellee.

GRICE, Presiding Justice.

This appeal by Matthew Callahan, Jr., is from the judgment and conviction in the Superior Court of Fulton County of murder and burglary where in he was sentenced to death by electrocution and twenty years to follow; and it is also from the denial of his amended motion for new trial.

1.The verdict of guilty is amply supported by the evidence.There was testimony that the victim, a young, inexperienced police officer, responded to a burglar alarm; that upon apprehending two men, one the appellant, he was disarmed and thrown to the ground; that both men violently and repeatedly stomped him unconscious; and that the appellant then pointed the pistol in the victim's face and fired it three times.The victim died several hours later.The general grounds are clearly without merit.

2.The appellant's contention that the trial court erred in denying him forty peremptory challenges to the jurors impaneled to try him for the consolidated trial, thereby denying his constitutional rights, is not valid.

He argues that since he was charged in two separate indictments with murder and burglary and tried under them at the same time, he was entitled to forty peremptory challenges under Code§ 59-805.This section recites in essential part that 'Every person indicted for a crime or offense which may subject him to death or imprisonment in the penitentiary for not less than four years may peremptorily challenge 20 of the jurors impaneled to try him . . .'

It should be borne in mind that the Criminal Code of Georgia provides that 'If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution,' except that 'the court in the interest of justice may order that one or more of such charges be tried separately.'Code Ann. § 26-506(b, c)(Ga.L.1968, pp. 1249, 1267).SeeHenderson v. State, 227 Ga. 68(1), 179 S.E.2d 76, where, as here, the evidence to be submitted to the jury as to two separate offenses constituted a single transaction.

In the situation under review the appellant went to trial on both indictments without objection, except the request for the additional challenges.Also, when this request was denied he made no motion for separate trials.

It has long been the law in this State: 'That an indictment contains more than one charge in its several counts does not authorize an increase in the number of peremptory challenges allotted the defendant.'Reynolds v. State, 101 Ga.App. 715(2), 115 S.E.2d 214.See alsoYork v. State, 42 Ga.App. 453(3), 156 S.E. 733;Meriwether v. State, 63 Ga.App. 667(3), 11 S.E.2d 816.

There is no reason why the foregoing rule as to counts should not be applied to a trial upon multiple offenses.We so hold.

3.The trial court did not err in denying the appellant's motion to exclude the recorded radio voice transmission of the deceased victim made while proceeding to the scene of the homicide.The appellant urges that this recorded transmission heard by the jury violated his constitutional right of cross examination and confrontation of witnesses under the Federal and State Constitutions (Code§§ 1-806, 2-103, 2-105;U.S.Const. Amend. 6;Const. art. 1, § 1, pars. 3, 5).State's counsel stated to the court that this evidence was being offered to explain the conduct of the victim in going to the scene of the homicide and as part of the res gestae.Therefore the court allowed it only for the purpose of explaining conduct to the satisfaction of the jury and not for the purpose of proving any fact.

This admission was proper, rendering the evidence not hearsay but as original evidence.Code§ 38-302.

The evidence was also admissible as forming part of the res gestae.The victim's voice transmission made while proceeding to the scene together with the events occurring there only moments later constituted the transaction under investigation.Code§ 38-305.The death of the person making such statement is no ground for its exclusion.The Augusta Factory v. Barnes, 72 Ga. 217(5b).

Therefore no rights of the appellant were violated as to this feature.

4.It is also insisted that the court erred in ruling, after a hearing out of the presence of a jury, that an alleged oral and written confession was voluntarily made, in allowing testimony thereof, in reading it to the jury, in admitting it into evidence, and in denying the motion to suppress evidence thereof in violation of Code§ 38-411 as to voluntariness of confessions;Art. I Sec. I Par. IX of the Georgia Constitution(Code Ann. § 2-109) which prohibits persons from being abused in being arrested, while under arrest, or in prison; and due process of law as provided by the Federal and State Constitutions (Code§§ 1-815 and 2-103;U.S.Const. Amend. 14;Const. art. 1, § 1, par. 3).

When this matter first arose the court conducted a hearing outside the presence of the jury in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205.

During this hearing a detective sergeant testified as to the events leading up to and including the oral and written confession involved.He swore, in substance, that he talked with the appellant in an interrogation room while the appellant's father was present; that the father urged the appellant to tell the officer the truth and that he finally said 'Okay'; that at that point the detective interrupted and told the father that the appellant would have to be advised of his rights before he made any statement; that both he and the father read to the appellant a waiver of counsel document which the appellant then signed; that the detective offered to obtain an attorney for him before he signed it; that the appellant first made an oral statement and later a second one which was reduced to writing by another detective, which the appellant, the father and the detective all signed; that neither he nor anyone in his presence...