Curtis v. State, 24904.

• Decision Date: 05 December 1968
• Docket Number: 24904.
• Parties: CURTIS v. THE STATE.
• Court: Georgia Supreme Court

224 Ga. 870

165 S.E.2d 150

CURTIS v. THE STATE.

24904.

Supreme Court of Georgia.

Submitted October 15, 1968.

Decided December 5, 1968.

Rehearing Denied December 19, 1968.

Mitchell & Mitchell, Warren N. Coppedge, Jr., for appellant.

R. L. Vining, Jr., Solicitor General, Arthur K. Bolton, Attorney General, Marion O. Gordon, Assistant Attorney General, John W. Hinchey, for appellee.

FRANKUM, Justice.

The appellant was convicted of the murder of Douglas Quarles. The jury recommended mercy, and he was sentenced to life imprisonment. His motion for a new trial as amended was overruled, and he appealed from that judgment, making 36 grounds of enumerated error before this court. We shall dispose of the appellant's contentions as argued in his brief relative to the various grounds of enumerated error in the order in which they are presented to this court in the brief.

1. In connection with the first three grounds of enumerated error (corresponding to the general grounds of the motion for new trial) appellant contends in ground 16 that the court erred in failing to direct a verdict of acquittal of the defendant because the State did not prove the cause of death, and he argues in this connection that the corpus delicti was not sufficiently proved. The evidence showed that during the course of a robbery occurring at the home of the deceased a masked bandit discharged a shotgun, some of the shot from which struck the deceased, that he fell to the floor and bled profusely, and that he was dead upon arrival at the hospital. The doctor testified that he did not perform an autopsy but that he found seven puncture wounds about the size of the eraser end of a pencil in the deceased's back and that from all appearances this was the cause of death. The corpus delicti may be proved by circumstantial as well as direct evidence. This evidence was sufficient to authorize the jury to find that Douglas Quarles died as the result of the gunshot wounds, and that his death did not result from accidental or natural causes or from his own act. The other evidence was sufficient to authorize the jury to find that the defendant was the one who fired the shotgun which inflicted the wounds on the deceased and that the discharge of the gun was in no way accidental but was perpetrated during the commission of an unlawful act, to wit during the perpetration of an armed robbery. The evidence authorized the verdict of guilty. Thomas v. State, 67 Ga. 460, 465 (6); Jester v. State, 193 Ga. 202, 208 (1) (17 SE2d 736); and Kelley v. State, 210 Ga. 118 (1) (78 SE2d 11).

2. In enumerated errors 4 and 5 the appellant complains of the refusal of the court to permit counsel to ask each juror on the panel whether he would favor legalized gambling or parimutuel betting in the State of Georgia and whether he would favor legalizing the sale of whiskey in Whitfield County. The trial court sustained the solicitor's objection to these questions, and appellant argues in this connection that this denied him effective representation of counsel, contrary to stated provisions of the United States and Georgia Constitutions. There is no merit in these enumerations of error. The right to examine each juror individually after the usual voir dire questions have been put by the court is a broad right granted under the provisions of Code Ann. § 59-705. But, this right is not unlimited, and such examination in its broadest scope should not go beyond matters which "would illustrate any interest of the juror in the cause, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefore, any fact or circumstances indicating any inclination, leaning or bias which the juror might have respecting the subject matter of the suit, or counsel or parties thereto, and religious, social and fraternal connections of the juror." In Hill v. State, 221 Ga. 65, 68 (8) (142 SE2d 909) it was held that the trial court has a discretion to limit the examination under this Code section to questions dealing directly with the specific case and to prohibit general questions. It is not apparent how the questions relating to the prospective juror's attitude toward legalizing parimutuel betting in Georgia or to legalizing the sale of alcoholic beverages in Whitfield County could illustrate any interest of the jurors in the cause, or any leaning or bias which the jurors might have respecting the crime for which the defendant was on trial. These enumerations of error show no cause for reversal.

3. In his sixth, seventh, eighth and ninth grounds of enumerated error the appellant complains because certain jurors named therein were automatically excused by the court without any motion having been made therefore by the solicitor general. (a) Under our law (Code § 59-806 (4)), and without regard to the ruling in Witherspoon v. Illinois, 391 U. S. 510 (88 SC 1770, 20 LE2d 776) which is not applicable here, the jurors who were dismissed by the court as complained of in these grounds were incompetent to serve in a capital felony case. Their disqualification having been called to the attention of the court, it was not error to dismiss those jurors in the absence of a formal motion by the solicitor general. Crockett v. McLendon, 73 Ga. 85 (3a). (b) Jurors are not public officers. McDuffie v. Perkerson, 178 Ga. 230, 235 (173 SE 151, 91 ALR 1002). The holding in that case related to grand jurors, but we have no hesitancy in extending it to petit jurors. Therefore, the contention that the deny one the right to serve on a jury in the trial of a capital felony where he is opposed to capital punishment on religious grounds, amounts to denying him on religious grounds the right to hold office is not meritorious. (c) In Bumper v. North Carolina, 391 U. S. 543 (88 SC 1788, 20 LE2d 797) the Supreme Court of the United States held, in effect, that in capital punishment cases, where the death penalty is not imposed, the mere fact that the jury panel was qualified so as to remove therefrom those opposed to the death penalty, will not require setting aside the conviction, but that the appellant, in order to be entitled to such relief, must adduce evidence to support his claim that the jury which tried him was, as a matter of fact, biased with respect to his guilt, as well as the punishment to be imposed. The appellant has failed to carry this burden in this case.

4. Appellant was tried on July 24, 25 and 26, 1967. The crime for which he was tried was committed on January 29, 1967. Within ten days or two weeks after the shooting two witnesses for the State were taken to the jail in Dalton to confront the defendant to ascertain whether they could identify him as the perpetrator of the crime. No attorney representing the defendant was present on either occasion, though counsel had been appointed for him. Prior to the trial counsel for the defendant moved to suppress the evidence of these witnesses on the ground that the rulings in United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149) and Gilbert v. California, 388 U. S. 263 (87...