Cobb v. State

• Decision Date: 10 November 1966
• Docket Number: No. 23744,23744
• Citation: 152 S.E.2d 403,222 Ga. 733
• Parties: Preston COBB, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 403

152 S.E.2d 403

222 Ga. 733

Preston COBB, Jr. v. The STATE.

No. 23744.

Supreme Court of Georgia.

Nov. 10, 1966.

Rehearing Denied Nov. 23, 1966.

Syllabus by the Court

1. The challenges to the arrays of grand and traverse juries, upon the grounds of arbitrary and systematic exclusion and inclusion of Negroes, were without merit.

2. The special demurrer to the indictment, complaining of the language 'with a certain gun,' was properly overruled.

3. It was not erroneous to permit qualification of the traverse jurors as to whether they were conscientiously opposed to capital punishment.

4. The trial judge properly determined that statements made by the appellant were voluntary.

5. In view of 4, supra, it was not error to permit a State's witness to swear from notes as to a statement made by the appellant; and it was not error to overrule his objection to the admission of testimony as to the two statements made by appellant upon grounds that they were obtained in violation of specified provisions of the State and Federal Constitutions.

6. The trial judge did not err in permitting a State's witness to swear from a paper or in denying appellant's motion to exclude the witness's testimony.

7. It was not error to admit in evidence a pistol and rifle over the objection that they were not identified.

8. Instructing the jury that they could return a verdict fixing the punishment was not erroneous as violating Constitutional and statutory rights of the appellant.

9. The contention that the appellant was not identified as the defendant on trial is not meritorious.

10. The evidence authorized the verdict of guilty.

Howard Moore, Jr., Horace T. Ward, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Executive Asst. Atty. Gen., Atlanta, George D. Lawrence, Sol. Gen., Eatonton, Jack J. Gautier, Sol. Gen., Fred Hasty, Macon, Hardaway Young, Atlanta, for appellee.

GRICE, Justice.

This appeal is by Preston Cobb, Jr., from his conviction for the June 1, 1961, murder of Frank Coleman Dumas. Appellant complains of the overruling of his challenges to the arrays of the grand and traverse juries put upon him, the overruling of his special demurrer to the indictment, and the denial of his motion for new trial.

He was first indicted in 1961 by the grand jury of Jasper County for the slaying of Dumas, an elderly white man, was tried in the superior court of that county, found guilty and sentenced to death. In his motion for new trial he complained for the first time of systematic exclusion of Negroes from the grand and traverse juries. Upon the overruling of that motion, he brought his case to this court. We held that by not raising that issue earlier he had waived it. Cobb v. State, 218 Ga. 10, 126 S.E.2d 231. The Supreme Court of the United States denied his application for certiorari. Cobb v. Georgia, 371 U.S. 948, 83 S.Ct. 499, 9 L.Ed.2d 497. Later we affirmed the denial of his extraordinary motion for new trial based upon newly discovered evidence. Cobb v. State, 219 Ga. 388, 133 S.E.2d 596.

Subsequently, the United States District Court for the Southern District of Georgia denied his claim, made in a habeas corpus proceeding, that Negroes had been arbitrarily and systematically excluded from the grand and traverse juries which indicted and tried him, but the United States Court of Appeals for the Fifth Circuit reversed. Cobb v. Balkcom, 339 F.2d 95 (CCA 5).

Thereupon, he was reindicted by the grand jury of Jasper County in February 1965. His challenge to the array of that grand jury, asserting 'systematic and arbitrary exclusion and limited inclusion of Negroes,' was overruled by the superior court of that county. He then made a motion for a change of venue, which was granted, and it was directed that trial take place in the Superior Court of Bibb County. There he interposed a challenge to the array of traverse jurors upon the ground of arbitrary and systematic exclusion and token inclusion of Negroes. This challenge was also overruled.

The jury returned a verdict of guilty, but with a recommendation of mercy, and accordingly he was sentenced to life imprisonment. Following the denial of his motion for new trial he appealed to this court, enumerating as error the rulings hereinbefore referred to.

1. We deal first with appellant's complaints as to the grand jury or Jasper County which reindicted him in February 1965, and as to the traverse jury of Bibb County which tried him in April 1965. He urges that he was denied due process of law as guaranteed by the State and Federal Constitutions and the protection of citizens as guaranteed by the State Constitution because of arbitrary and systematic exclusion and inclusion of Negroes from these juries due to race or color.

As to these complaints, he makes two main contentions. The first is that the persons eligible for grand jury service in Jasper County and for traverse jury service in Bibb County, at the time of his last indictment and trial, were selected from the tax digests which, pursuant to State statute, were organized and maintained on the basis of race or color, and that therefore, the procedures by which the jury lists were selected were inherently discriminatory. The second contention, basically, is that on each such list the percentage of Negroes was disproportionate to the percentage of Negro population of that county.

These contentions have previously been dealt with by this court and by the Supreme Court of the United States and found not valid. They need not be elaborated upon here. See Heard v. State, 210 Ga. 523, 81 S.E.2d 467; Brookins v. State, 221 Ga. 181, 144 S.E.2d 83; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

The situation found by the court in Cobb v. Balkcom, 339 F.2d 95, supra, to exist in Jasper County, i.e., no Negroes serving on grand or traverse juries, was promptly remedied by the jury commissioners of that county. In Bibb County Negroes have been placed on jury lists and have served as jurors for many years.

From a study of this record as to the selection of these 1965 grand and traverse juries, we find that the officials charged with that responsibility properly discharged their duties. Each jury commissioner testified that the jury list was selected without regard to race or color. By law (Code Ann. § 59-106) they were required to select 'upright and intelligent citizens' as traverse jurors and 'the most experienced, intelligent, and upright citizens' as grand jurors. They were not required to depart from those time tested standards of uprightness, intelligence and experience in order to achieve some arbitrary ratio based upon race. That kind of selection would greatly impair the very foundation of the fact finding process, which is essential to the proper administration of justice. What was said in the Swain case, 380 U.S. 202, 85 S.Ct. 824, supra, applies here: 'There is no evidence that the commissioners applied different standards of qualifications to the Negro community than they did to the white community.'

The challenges to the arrays are clearly not meritorious.

2. We next deal with the overruling of appellant's special demurre to the indictment. The indictment, insofar as material here, that the appellant 'did kill and murder, by shooting the (deceased) with a certain gun which the said (appellant) then and there held * * *' He urges that the language 'with a certain gun' is insufficient to enable him to make an adequate defense, in that it is too vague a description of the weapon allegedly used.

This position cannot be maintained.

The term 'gun' appears in a number of our statutes defining crimes. See Code §§ 26-1702, 26-5107, 26-7301, 26-7308, and 26-7311. For descriptions, comparable in principle, which have been upheld against attack on the ground of vagueness, see Bowens v. State, 106 Ga. 760(1), 32 S.E. 666 and Wilson v. State, 190 Ga. 824, 10 S.E.2d 861.

3. The appellant maintains in his motion for new trial that it was error to qualify prospective traverse jurors as to whether they were conscientiously opposed to capital punishment. He urges that this was a violation of the guaranties of impartial jury trial and due process of the Federal Constitution and of due process of the State Constitution, in that he was less than 17 years of age when the crime was allegedly committed and legislation was subsequently enacted providing that any minor less than seventeen years of age at the time of an alleged offense could not be given the death penalty. He insists that this qualification forced him to trial before a jury which did not represent a true cross-section of the community and which was more prone to convict.

The legislation referred to is a 1963 statute (Ga.L.1963, p. 122) which amended Code §§ 26-1005 and 27-2302. The trial judge here properly ruled that this statute could not be given retroactive effect so as to apply to the appellant. Constitution, Art. I, Sec. III, Par. II (Code Ann. § 2-302); Code § 102-104.

This court has held that 'The statute authorizing the interrogation of a juror in regard to his opposition to capital punishment does not deny a person accused of a capital crime the right to a trial by an impartial jury; neither does it deny him due process of law, or the equal protection of the laws.' Massey v. State, 222 Ga. 143(5) 149 S.E.2d 118. See also Woolfolk v. State, 85 Ga. 69(9), 11 S.E. 814. Furthermore, appellant was not harmed by such qualification since the jury recommended mercy, thus requiring a sentence of life imprisonment rather than capital punishment.

This contention as to such qualification of the jurors cannot be sustained.

4. Appellant contends in his motion for new trial that the trial court erroneously ruled, during a hearing on the question of the voluntariness of certain statements by him, that the burden of proof had shifted to him to rebut...