Cash v. State, 23401
| Decision Date | 07 April 1966 |
| Docket Number | No. 23401,23401 |
| Parties | John Virgil CASH v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The charge of the court defining reasonable doubt complained of by appellant was not error.
2. It was not error, in the trial of the appellant for armed robbery, to admit in evidence, over objection, a pistol procured by F.B.I. agents in the search of an apartment in Los Angeles, California, where the search was made incidental to the lawful arrest of another person, as the search and seizure of the evidence was lawful. Evidence procured by lawful search and seizure would not be limited in its admissibility only as against the person whose lawful arrest made the search and seizure lawful.
Wendell C. Lindsey, Atlanta, for appellant.
Lewis R. Slaton, Sol. Gen., J. Robert Sparks, J. Walter LeCraw, Arthur K. Bolton, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for appellee.
John Virgil Cash, the appellant, was indicted, tried, and convicted with recommendation of mercy, of robbery by use of an offensive weapon and sentenced to life imprisonment.
On appeal to this court he enumerates as error: (1) the giving of an erroneous charge on reasonable doubt; and (2) in admitting a pistol in evidence.
1. The charge complained of is as follows: Appellant contends that the charge is erroneous because it imposes upon the accused a greater burden than the law warrants, since a reasonable doubt conscientiously entertained by one or more jurors (less than twelve) should at least entitle defendant to a mistrial. The appellant recognizes that the charge complained of has been approved by this court in Dumas v. State, 63 Ga. 600(8), and by the Court of Appeals in Barnes v. State, 71 Ga.App. 9, 29 S.E.2d 919. He requests that this Court review those decisions and overrule them. A similar but not identical charge was approved in Sheffield v. State, 188 Ga. 1(1), 2 S.E.2d 657 citing Dumas v. State, supra. And in Hancock v. State, 196 Ga. 351, 356, 26 S.E.2d 760, 147 A.L.R. 1042, this charge in substance was approved, but the complaint made against it was not the same as was made in Dumas v. State, supra, and in this case.
Prior to the charge complained of, the court charged fully the law on reasonable doubt in charging 'that defendant enters upon the trial with the presumption of innocence in his favor, which remains with him throughout the trial, and until and unless, the State, by the introduction of evidence has satisfied your minds beyond a reasonable doubt as to his guilt * * *' (emphasis ours) that the State must '* * * prove the material allegations in the indictment to your satisfaction and beyond a reasonable doubt * * *' for the jury to convict; and then just prior to the excerpt complained of charged 'Now Gentlemen, a reasonable doubt means exactly what it says, not a capricious or arbitrary doubt, not a doubt which does not arise from a consideration of the evidence, but a doubt growing out of the evidence, or from a lack of the evidence, or from a conflict of the evidence.'
The charge complained of is not as contended by appellant subject to the construction that it prevents a mistrial in case one or more of the jurors has a reasonable doubt of the guilt of the defendant. The court simply charged what is meant by a reasonable doubt in the minds of jurors, and charged further that if a reasonable doubt, as thus defined, did not exist in their minds as to his guilt then they should convict the defendant. We do not think any intelligent juror would be confused by this charge into thinking that he was prevented from voting for an acquittal if he had a reasonable doubt of the guilt of the defendant unless all of the other jurors also had a reasonable doubt of the defendant's guilt. This ground is without merit.
2. As to the admission of the pistol in evidence, the material evidence was as follows: F.B.I. agents in Los Angeles, California went to a specified address in that city to arrest a woman, Carlene Lewis, alias Mary Morris, on a charge of transporting a stolen automobile across a State line (Dyer Act). They were acting on information from the F.B.I. that a warrant had been issued in Birmingham, Alabama, for her arrest. They entered the house where she was found and placed her under arrest without incident. The permanent resident of the house began making motions with her head toward a rear bedroom in the residence. The two F.B.I. agents went to the bedroom, opened the door to a closet in the room, and found a man standing therein. He was ordered out of the closet. He gave the officers his name, John Virgil Cash. They did not place him under arrest, but called Los Angeles Police, who came out and placed him under arrest on suspicion of robbery. Incident to the arrest of Darlene Lewis, the agents searched the house, and found the pistol in question lying on top of a three-foot high box in the closet where defendant was found. It was fully loaded. On the trial of the defendant, the pistol was, over objection, introduced in evidence as being one similar in appearance to that which was used in the robbery for which Cash was on trial. Cash was identified as the perpetrator of the robbery and the pistol as being similar in appearance to the one used by Cash in committing the...
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