Cherry v. State, 22826
| Decision Date | 03 March 1965 |
| Docket Number | No. 22826,22826 |
| Citation | 141 S.E.2d 412,220 Ga. 695 |
| Parties | James Walter CHERRY v. The STATE |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Where the averment of the bill of exceptions recites that the order overruling a plea of autrefois acquit was signed by the solicitor general, the ground presents no question for consideration by this court.
2. Grounds of a motion for new trial not insisted upon in the brief or in oral argument of counsel are treated as abandoned.
3. No inference derogatory to one's reputation or character can be drawn from the mere proof that he has occasionally been seen in court.
4. A motion for mistrial must state the ground upon which it is made.
5. When a motion for mistrial is made and the trial court instructs the jury not to consider the alleged error upon which the motion is based, and counsel neither requests further instructions nor renews the motion for mistrial, the assignment of error based on the denial of the motion for a mistrial is without merit.
6. Where a juror on voir dire answers that he is conscientiously opposed to capital punishment for the capital offense with which the defendant on trial is charged, he does not, in contemplation of the law, believe in capital punishment and is properly excused from service in the case.
7, 8. Where the evidence shows the defendant to be guilty of the offense charged and there is no variance between the charge made in the indictment and the State's proof of such charge, there is no merit in the contention that the evidence was not sufficient to support the verdict.
James Walter Cherry was charged with robbery by use of an offensive weapon (a pistol) in an indictment returned by the Fulton County grand jury. The defendant plead not guilty and a jury was selected and sworn. After evidence had been introduced by the State, the court ex mero motu excused a certain juror on the ground that his mother had died subsequent to the commencement of the trial. On the defendant's objection to a jury of elevent a mistrial was declared. The defendant was again put on trial and filed a plea of autrefois acquit. 'To this plea an order was entered overruling said plea on the 5th day of November, 1963, signed by William T. Boyd, Solicitor General of the Atlanta Judicial Circuit.'
The defendant proceeded to trial. After the voir dire three jurors were excused for cause, over the defendant's objection, and the ground that they were opposed to capital punishment except under certain circumstances.
The jury returned a verdict finding the defendant guilty as charged and recommended mercy. The defendant filed his motion for new trial on the general grounds and amended by adding seven special grounds. The trial judge issued an order denying the motion for new trial as amended. The defendant excepted and brings the case to this court for review.
Larry Cohran, Forest Park, Pierre Howard, Atlanta, for plaintiff in error.
William T. Boyd, Sol. Gen., J., Walter LeCraw, William E. Spence, Eugene Cook, Atty. Gen., J. R. Parham, Asst. Atty. Gen., Atlanta, for defendant in error.
1. The bill of exceptions alleges that when the defendant was placed on trial on November 5, 1963, he filed a plea of autrefois acquit. The bill of exceptions recites: 'To this plea an order was entered, overruling said plea on the 5th day of November, 1963, signed by William T. Boyd, Solicitor General of the Atlanta Judicial Circuit.' Hence, the ground presents no question for consideration here.
2. The first and seventh special ground of the motion for new trial were not insisted upon in the defendant's brief or in oral argument before this court and are treated as abandoned. Reed v. Reed, 217 Ga. 303(3b), 122 S.E.2d 253.
3. Special ground 2 insists that the court erred in admitting over the defendant's objection the testimony of a police officer of Birmingham, Alabama, assigned to safe, burglary and narcotics investigation, that he had seen the defendant in court three times. The objection was that the officer's testimony put the defendant's character in issue.
The testimony of the police officer did not tend to reflect upon the character of the accused or raise any issue in regard to his character. Courts throughout the country are attended by people of all classes. No inference derogatory of one's reputation or character can be drawn from the mere proof that he has occasionally been seen in court. The ground is without merit.
4. The third special ground recites that the court admitted certain evidence over the objection of the defendant's counsel which was withdrawn by the assistant solicitor general; that the solicitor made a remark as to the probative value of the evidence. Whereupon counsel for the defendant simply stated: 'Now, if the court please, I move for a mistrial.' It is not alleged that the motion was made upon any particular ground. Thus it is apparent the motion presented no question for the trial court's consideration nor for review by this court. Owens v. State, 32 Ga.App. 417, 418(2), 123 S.E. 919; Bryant v. State, 44 Ga.App. 781(2), 163 S.E. 219; Lumbermen's Underwriting Alliance v. First National Bank & Trust Co., 100 Ga.App. 217, 223(5), 110 S.E.2d 782; Whitehead v. State, 101 Ga.App., 732, 115 S.E.2d 429.
5. The fourth special ground of the motion alleges that during the progress of the trial the assistant solicitor made the remark: 'Mr. Howard ought to anticipate anything as much money as he is getting out of this case.' The defendant's counsel made a motion for mistrial on account of the statement having been made. The court stated to the jury: After the court's quoted instructions to the jury the motion was not renewed, nor any...
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Cherry v. Director, State Bd. of Corrections
...of double jeopardy to require review. It rejected Cherry's various other contentions and affirmed his conviction. Cherry v. State, 220 Ga. 695, 141 S.E.2d 412 (1965). Ten years later in a state habeas corpus petition Cherry raised only the double jeopardy issue. The trial court denied the w......
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Cherry v. Director, State Bd. of Corrections
...at 362. At the state level, Cherry appealed his conviction alleging double jeopardy and his conviction was affirmed in Cherry v. State, 220 Ga. 695, 141 S.E.2d 412 (1965). He again raised the double jeopardy issue in a state application for habeas which was denied by both the trial court an......
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Williams v. State
...have held that if he answers in the affirmative he is imcompetent to serve. Mickens v. State, 149 Ga. 185, 99 S.E. 779; Cherry v. State, 220 Ga. 695(6), 141 S.E.2d 412. 4. Enumerations of error numbers 9-26 inclusive assert that the court erred in placing upon the defendant in the selection......
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Yeargin v. State, s. 64873
...for further curative instructions. It follows that the denial of the motion cannot now be enumerated as error. See Cherry v. State, 220 Ga. 695(5), 697, 141 S.E.2d 412 (1965); Whitley v. State, 158 Ga.App. 618(3), 281 S.E.2d 637 6. Yeargin further contends that the tape recording of her con......