Cunningham v. State
| Decision Date | 12 September 1975 |
| Docket Number | No. 30101,30101 |
| Citation | 235 Ga. 126,218 S.E.2d 854 |
| Parties | Willie Howard CUNNINGHAM v. The STATE. |
| Court | Georgia Supreme Court |
William E. Anderson, Newnan, for appellant.
Eldridge W. Fleming, Dist. Atty., Newnan, Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Asst. Atty. Gen., Atlanta, for appellee.
Willie Howard Cunningham was indicted, tried and convicted by a jury, along with two other defendants, for armed robbery and simple assault arising from the robbery and shooting of the proprietor of the Oaks Motel in Newnan. The sole ground for appeal is the denial of defendant's motion for a directed verdict because the evidence was not sufficient to prove the appellant guilty beyond a reasonable doubt. See, Code Ann. § 27-1802(a); Merino v. State, 230 Ga. 604, 198 S.E.2d 311; Code Ann. § 38-109; Davis v. State, 13 Ga.App. 142, 78 S.E. 866.
At trial the motel proprietor testified to seeing Cunningham's co-defendant, Hardwick Cain in the motel's restaurant having a cup of coffee while two others waited outside in a wine colored automobile. A little over an hour later, Cain, along with Cunningham, entered the motel office and inquired about a room; Cunningham also asked for a beer. When the owner returned with the beer, Cain pointed a pistol at him and said, 'We don't want no room, we want some money . . .' In an ensuing scuffle the 75 year old motel owner was shot in the stomach, but the proprietor was able to notify the police, who stopped the car with the three defendants in it only six minutes later. In the car, were found the pistol used to shoot the victim and the victim's own .38 caliber pistol, as well as a sawed-off shotgun. In addition, rolled coins from the motel were discovered in the console next to the defendant, who was driving. The third defendant, Willie James Bettie, admitted that he saw Cain come out of the motel carrying a plastic money tray, which was also found in the car.
The defendant claims that he was present with Cain and Bettie at the Oaks Motel, but that they had not arrived earlier for coffee as the proprietor had testified. According to the defendant, after he acquired the beer he had gone out to the car where he sat with Bettie in the rain with the radio playing and did not know that Cain had robbed and shot the motel owner. Nor did he suspect so, despite the coins, guns and tray, as they left the Oaks Motel and headed back to Atlanta.
The only direct evidence of the defendant's participation in the crime is the victim's testimony at trial that he was aware of the defendant walking back and forth and in and out of the office during the robbery. However, the defense offered as impeaching evidence, the proprietor's testimony at the preliminary hearing where he stated...
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... ... The conviction of rape is not supported by the evidence." ... The jury's verdict must be honored if there is any evidence to support it. Cunningham v. State, 235 Ga. 126, 127, 218 ... S.E.2d 854 (1957). Unless a verdict of acquittal is [243 Ga. 297] demanded as a matter of law, the refusal to direct the verdict is not error. Merino v. State, 230 Ga. 604, 198 S.E.2d 311 (1973). The victim was acting under intimidation. Any assent on her ... ...
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