Evans v. State

• Decision Date: 07 July 1966
• Docket Number: No. 23475,23475
• Citation: 222 Ga. 392,150 S.E.2d 240
• Parties: Alex EVANS v. The STATE.
• Court: Georgia Supreme Court

Page 240

150 S.E.2d 240

222 Ga. 392

Alex EVANS v. The STATE.

No. 23475.

Supreme Court of Georgia.

July 7, 1966.

Rehearing Denied July 21, 1966.

Syllabus by the Court

1. Appellant concedes that enumerated errors numbers 14, 15, 16, 17, 18, 19, 20, 21, and 24 are controlled adversely to him by the decision of this Court in Williams v. State, 222 Ga. 208, 149 S.E.2d 449, and we hold such rulings are controlling.

2. The furnishing of the names of witnesses who appeared before the grand jury in a criminal case meets the requirements of Art. I, Sec. I, Par. V (Code Ann. § 2-105). It is not the practice in this State for the court to engage in investigation as to whether the evidence before a grand jury was sufficient to warrant an indictment.

3. Enumerated errors to the charge of the court in Divisions 4, 5, 6, 7, 8, 9, 10, 11, are each without merit for reasons set out therein, and will not be repeated here, as to do so would require repeating in substance each of them.

4. It was not error to deny appellant's motion for mistrial (enumerated error 22, Division 12) where the solicitor general, in pursuing a question and answer elicited from the witness by defendant's counsel on cross examination, asked a question of the witness whose answer tended to put his character in evidence, where the judge struck the question and answer from the record and instructed the jury to disregard the testimony and give it no consideration.

5. It was not error as contended in enumerated error 25 (Division 14) for the court to deny defendant's challenge to a juror, where he used only 19 of his peremptory challenges, as the burden was upon the defendant to show that he was injured by the ruling, which he failed to do.

6. It was not error as contended in enumerated error 26 (Division 15) to admit the statement of Williams, a co-indictee of the defendant, where there was sufficient evidence to establish a prima facie case of conspiracy among Williams, Truett, and Evans, the defendant, to steal an automobile and the killing of the deceased persons by the conspirators while carrying out the conspiracy, where the statement was made after the commission of the crime but while the conspiracy continued by the defendant and his co-conspirator, Williams, concealing their identity, keeping secret the commission of the crime, and denying their guilt.

7. It was not error as contended in enumerated error 27 (Division 16) for the court to deny defendant's motion to exclude and reject the testimony of Truett, who was granted immunity from prosecution by the State in return for his testifying against his co-conspirators. His evidence is admissible, and the granting of immunity only goes to his credibility, which is a question for the jury.

8. It was not error for the court to overrule the motion for new trial on the general grounds, as the testimony of the accomplice, Truett, that he, Williams, and the defendant, Evans, entered into a conspiracy to steal an automobile, a felony, and in the process of carrying out the unlawful act, one or more of them, upon being caught by three Gwinnett County officers, shot and killed the officers, was sufficiently corroborated by other evidence to connect the defendant with the crime of murder and support his conviction.

E. C. Brannon, Jr., Robert B. Thompson, Gainesville, for appellant.

Reid Merritt, Sol. Gen., Buford, Luther C. Hames, Jr., Marietta, Arthur K. Bolton, Atty. Gen., Carter A. Setliff, Asst. Atty. Gen., Atlanta, Davis & Davidson, Jefferson, for appellee.

MOBLEY, Justice.

Alex S. Evans was jointly indicted with Vernon Eugene Williams by the grand jury of Gwinnett County of murder of Jerry Everett by shooting him with a pistol on the 17th day of April, 1964. Williams was first placed on trial, asked for severance, was tried separately, and found guilty of murder as charged in the indictment. His conviction was affirmed by this Court in Williams v. State, 222 Ga. 208, 149 S.E.2d 449. The defendant, Evans, was then tried, was found guilty of murder, as charged, and was sentenced to death. The appeal is from that judgment and sentence. He enumerates as error the overruling of his motion for new trial on the general ground that the evidence is insufficient to support the verdict, and enumerates 26 additional errors.

1. After the decision of this court in Williams v. State, supra, companion case to this case, this court requested appellant to file a supplemental brief stating which, if any, of the errors enumerated in this case are controlled by rulings made in the Williams case. In response thereto counsel filed a supplemental brief in which they concede that enumeration of errors numbers 14, 15, 17, 18, 19, 20, 21, and 24 are controlled adversely to his contentions by the decision in the Williams case, although he does not concede the correctness of such rulings. Such rulings in Williams are controlling on the above errors enumerated and will not be considered further.

2. Enumerated errors numbers 11, 12, and 13, complaining respectively of the State failing to furnish the defendant with a list of the names of the witnesses upon whose testimony the charges against him are based other than those listed on the indictment, the denial of his motion to quash the indictment, because the evidence produced before the grand jury was hearsay and no evidence of probative value showing the guilt of defendant was produced, and the denial of his motion to quash without hearing evidence, are without merit.

The furnishing of the names of the witnesses who appeared before the grand jury against a defendant in a criminal case meets the requirements of Art. I, Sec. I, Par. V (Code Ann. § 2-105) that 'Every person charged with an offense against the laws of this State * * * shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded * * *.' Keener v. State, 18 Ga. 194(2); Inman v. State, 72 Ga. 269(1); Lewis v. State, 101 Ga. 532, 28 S.E. 970; Palmer v. State, 23 Ga.App. 84(1), 97 S.E. 460. As to enumerations 12 and 13 it has never been the practice in this State for the court to engage in an investigation as to whether the evidence before a grand jury was sufficient to warrant an indictment. Williams v. State, supra (2); Buchannan v. State, 215 Ga. 791, 113 S.E.2d 609.

3. Appellant in enumeration 2 alleges error in charging that 'Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of an accomplice to support a verdict.' This court in Chapman v. State, 109 Ga. 157(4), 34 S.E. 369 held that in the trial of a criminal case where the State relied upon evidence of an accomplice and claimed that it had been corroborated, it was error to give substantially this same charge, pointing out that, while the charge is a correct statement of the law, it is not a proper charge, for it is for the jury to determine whether the evidence of the accomplice is corroborated. There, the court observed that the language used may have had a tendency to mislead the jury to infer that if the testimony of the accomplice was corroborated by any evidence, however slight, it was their duty to convict, 'especially as the court did not in the same connection caution the jury with the further instruction that such corroboration, whether, in their opinion, slight or strong, considered in connection with the other evidence, should be sufficient to satisfy the jury of the guilt of the accused beyond a reasonable doubt.'

This court in Rawlins v. State, 124 Ga. 31(16), at p. 49, 52 S.E. 1, at p. 9 in considering a similar charge as that in Chapman v. State, supra, 109 Ga. at p. 164, 34 S.E. 369 held that the charge was not error where '* * * the judge distinctly charged the jury more than once that the testimony of an accomplice, uncorroborated, was not sufficient to convict. He also charged fully upon the law of reasonable doubt, and the extract from the charge above quoted, when taken in connection with the entire charge, was not calculated to mislead the jury in regard to the amount of corroboration required. He tells them in terms that it is a question for them to determine, and they are to consider the corroboration, whether it be strong or slight; and the effect of the charge is simply to state that it is for the jury to determine whether the corroboration was of such a character as to satisfy their minds.'

Here, the trial judge charged more fully on corroboration of an accomplice than was charged in Rawlins v. State, supra and that '* * * the determination of the existence of any corroborating evidence, the determination of its sufficiency, if any exists, and the weight and credit to be given the testimony of any accomplice, if corroborated, are all matters for you under the rules given you in charge.' This ground is without merit.

4. Enumeration 3 alleges the court erred in giving the following charge: 'If you find that there was a conspiracy, and that the act charged in this indictment grew therefrom, and that the defendant participated in the common intent and purpose of the conspiracy, and that it was an unlawful act that was contemplated, then he would be responsible for the acts of the other persons with whom he conspired, even-he would be responsible, Gentlemen of the Jury, for all acts and declarations of the other persons with whom he conspired.' The complaint is that the charge fails to limit the acts and declarations of other persons or conspirators for which Evans could be held responsible as a conspirator. Just prior to this charge, the court defined conspiracy and, while not immediately following, charged explicitly that, if a conspiracy is established, declarations or acts by any of the conspirators during the pendency of the criminal enterprise are admissible in evidence against any member of the conspiracy, but that acts or declarations made...