Cornett v. State
| Decision Date | 15 October 1962 |
| Docket Number | No. 21754,21754 |
| Citation | 128 S.E.2d 317,218 Ga. 405 |
| Parties | Robert L. CORNETT, Jr. v. The STATE. |
| Court | Georgia Supreme Court |
Merritt & Pruitt, Glyndon C. Pruitt, Buford, for plaintiff in error.
Jack Holland, Sol. Gen., , Buford, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.
Syllabus Opinion by the Court
Robert L. Cornett, Jr., and Jerry Waldrip were jointly indicted in Gwinnett County for the offense of robbery by use of an offensive weapon, namely, a pistol, a weapon likely to produce death when used in its usual and customary manner. Cornett was separately tried, convicted of the offense charged and his punishment was fixed at from 4 to 10 years in the penitentiary. He moved for a new trial on the usual general grounds and amended his motion by adding 4 special grounds. He was denied a new trial and the exception is to that judgment. Held:
1. The defendant contends that the court erred in refusing to grant him a new trial on the general grounds of his motion since there was a fatal variance between the allegations of the indictment and the evidence adduced in proof thereof. Respecting this, the record shows that the indictment alleges that the robbery was accomplished by use of an offensive weapon, to wit: a pistol, a weapon likely to produce death when used in its usual and customary manner and the evidence conclusively shows that the accused used a pistol which would not fire live ammunition in effecting the robbery. The position taken by the accused is tenable. The offense of robbery was redefined by an act approved March 7, 1957 (Ga.L.1957, p. 261). That act defines and prescribes punishment for four separate and distinct classes of robbery, one of which is robbery by use of an offensive weapon. Section 1 of the act declares in part: 'The use of or offer to use an offensive weapon, or a weapon likely to produce death when used in its usual and customary manner, or any replica, article or device having the appearance of such weapon, in the taking of personal property from another, shall constitute robbery by use of an offensive weapon.' As pointed out, the indictment alleges that the offensive weapon which the accused used in effecting the robbery was a deadly weapon (not a replica, article or device having the appearance of such a weapon); and, since the indictment specifically alleged that as a fact, it was incumbent on the State to prove the allegation as laid, and proof that the accused in effecting the robbery used a replica, article or device having the appearance of a deadly weapon would be wholly insufficient to prove that allegation of the indictment. See Crenshaw v. State, 64 Ga. 449; Hall v. State, 120 Ga. 142(1), 47 S.E. 519; Smith v. State, 185 Ga. 365, 195 S.E. 144, and the cases there cited. On this ground of the motion a new trial should have been granted the movant.
2. The first special ground of the motion alleges that the court, over timely objection by the accused, erred in allowing Daniel C. Cole, a witness for the State, to testify. His motion was based on the ground that he had invoked the rule of sequestration; that the court had refused to send Cole out with the other witnesses; and that he had been in the courtroom during the trial and heard other witnesses for the State testify. There is no merit in this special ground of the motion. Code § 38-1703, provides: this special ground of the motion affirmatively shows that the witness Cole was not only the Sheriff of Gwinnett County when this case was tried but was the prosecutor of the case and marked on the indictment as such; and we have found no case, and none has been cited, where this court or the Court of Appeals has held that it was reversible error for the trial judge to permit the sheriff of his court, or the prosecutor in a criminal case, to remain in the courtroom and afterwards testify as a witness for the State where the rule of sequestration had been invoked in such case. What we have here held is sustained by the unanimous decisions of this court in Rooks v. State, 65 Ga. 330(1); May v. State, 90 Ga. 793(2), 17 S.E. 108; Keller v. State, 102 Ga. 506, 31 S.E. 92; Davis v. State, 120 Ga. 843(2), 845, 48 S.E. 305; Taylor v. State, 132 Ga. 235(2), 237, 63 S.E. 1116; and Wallace v. Mize, 153 Ga. 374(7), 112 S.E. 724. In Hoxie's case, Hoxie v. State, 114 Ga. 19, 39 S.E. 944, which was decided in 1901, and where the rule of sequestration was invoked, the court unanimously held that it was not erroneous for the judge to permit two deputy sheriffs to remain in the courtroom and afterwards testify as witnesses for the State since their presence as officers of the court was needed. For another case clearly sustaining the ruling we have here made, see Askew v. State, 3 Ga.App. 79, 59 S.E. 311, where that court speaking through Judge Russell held: ...
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