Cummings v. State
| Decision Date | 08 January 1970 |
| Docket Number | No. 25517,25517 |
| Citation | 226 Ga. 46,172 S.E.2d 395 |
| Parties | George CUMMINGS v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. It was not error for the trial court to refuse the appellant's request that the district attorney be ordered to supply him with certain information obtained in the investigation of the case.
2. It was not error for the court to deny the request of counsel for the appellant to further examine the jurors concerning their expressed opposition to capital punishment given in their answers on voir dire.
3. It was not error to admit into evidence certain exhibits complained of, since oral testimony containing substantially the same evidence was admitted without objection.
4. It was not error to deny appellant's motion for a mistrial based on allegedly improper statements made by the assistant district attorney during his argument.
5. It was not error for the trial court to submit to one and the same jury the issue of guilty or innocence, and the issue of the setting of the sentence.
Hester & Hester, Frank B. Hester, Richard M. Hester, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Tony H. Hight, J. Melvin England, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, William R. Childers, Jr., Asst. Attys. Gen., Atlanta, for appellee.
George Cummings was indicted for the murder of Anderson Shaw by shooting him with a pistol. The murder occurred on October 7, 1968. He was tried April 9, 1969, found guilty and sentenced to death. He moved for a new trial on the general grounds and five special grounds. His appeal is from the denial of this motion.
1. Enumerated error number 4 asserts that the court erred in overruling appellant's written demand that the district attorney be required to produce: (a) copies of all reports made by investigating officers of the Atlanta Police Department and members of the district attorney's staff which were pertinent to the case; (b) a list of all witnesses who appeared before the grand jury, or who will or may appear in the trial of the case along with copies of the fingerprint records of the witnesses; (c) a copy of the transcript of the testimony delivered before the grand jury; and (d) a copy of the transcript of the evidence taken in the hearing by the court of inquiry. These requests were made pursuant to Code § 27-406.
It is alleged that this denial violated the appellant's right to due process of law as guaranteed by the Federal and State Constitutions.
Under prior decisions of this court, it was not error to deny the request for the production of the alleged documents. Williams v. State, 222 Ga. 208(2), 149 S.E.2d 449; Walker v. State, 215 Ga. 128(5), 109 S.E.2d 748, 927; Blevins v. State, 220 Ga. 720(2), 141 S.E.2d 426; Brown v. State, 223 Ga. 76(9), 153 S.E.2d 709.
2. Enumeration of error number 5 asserts that the court erred in denying the appellant's motion to question each juror individually concerning the truth or untruth of his opposition to capital punishment which was expressed in answer to the question propounded by the State, 'Are you conscientiously opposed to capital punishment?' as provided for by Code § 59-806, 59-807. It is argued that appellant was thus denied his constitutional right to due process of law, and his right to a fair trial, both being rights which are guaranteed to him by stated provisions of the Federal and State Constitutions.
Code § 59-806 (Ga.L. 1855-56, p. 231) provides that in a trial for a felony, any juror may be put upon his voir dire, and four questions shall be propounded to him. The subsection dealing with the fourth such question is stated as follows:
The record discloses that while the district attorney was in the process of qualifying the jury and asked the question as to whether or not any members of the jury panel were conscientiously opposed to capital punishment, counsel for the appellant asserted his right to cross examine each juror who answered in the affirmative as to whether he was conscientiously opposed to capital punishment. Appellant's counsel further requested the court for permission to ask the two additional questions allowed under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Whisman v. State, 224 Ga. 793, 164 S.E.2d 719. The court ruled that counsel for the appellant could not further examine the jurors.
The challenge to the qualifications of the jurors made here was to the poll, for cause. Such challenges are to be tried by the court on the testimony of the juror to the exclusion of all other evidence. If the juror's answer is found to be true, he is disqualified per se. Turner v. State, 114 Ga. 421(2), 40 S.E. 308; Code § 59-807 (Ga.L.1855-56, p. 231).
However, counsel for the appellant contends that under Code § 59-806(4) which provides: 'Provided nevertheless, that either the State or the defendant shall have the right to introduce evidence before the judge to show that the answers, or any of them, the untrue; and it shall be the duty of the judge to determine upon the truth of such answers as may be thus questioned before the court' that he had the right to cross examine each juror.
Code § 59-804(4) is a codification of Ga.Laws 1855-56, p. 231. This court in Pines v. State, 21 Ga. 227, 237, said, concerning the application of this section: This ruling was followed in Lindsay v. State, 138 Ga. 818(1), 76 S.E. 369; Duncan v. State, 141 Ga. 4(1), 80 S.E. 317; Cady v. State, 198 Ga. 99(1), 31 S.E.2d 38. It was not error for the court to deny the request of counsel to further examine the jurors concerning their answers on voir dire.
3. Enumeration of error 6 asserts that the court erred in admitting into evidence, over objection, State's exhibit 14 (a test .22 caliber projectile). Appellant further argued that this exhibit, along with State's exhibit 13 (a .22 caliber pistol from which the fatal projectile was fired) should not have been admitted into evidence because they were not connected with the defendant in any way.
Kelly Fite, a technician in the Georgia State Crime Laboratory, testified without objection that State's exhibit 13 (a .22 caliber pistol), State's exhibit 12 (a bullet taken from the body of the victim), and State's exhibit 14 (a .22 caliber test bullet), were examined by him. He testified that the test bullet (State's exhibit 14), was fired from State's exhibit 13 (the .22 caliber pistol in question). He further testified that, in his opinion, the bullet which killed Anderson Shaw was fired from State's exhibit 13. Counsel for appellant cross examined the witness concerning these matters.
It was not error to admit the exhibits complained of, since substantially the same evidence was admitted without objection. Massey v. State, 220 Ga. 83(4), 142 S.E.2d 832; Whippler v. State, 218 Ga. 198(7), 126 S.E.2d 744.
The appellant, in his statement, admitted firing a pistol at the time and place in question. There was no evidence of any other pistol shots being fired at the moment of the murder. Though there was no direct evidence that State's exhibit 13 was the pistol which fired the fatal shot, the jury was authorized to find, from the direct and circumstantial evidence, that the bullet which caused the victim's death was fired by the appellant.
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