Germany v. State
| Decision Date | 08 January 1976 |
| Docket Number | No. 30218,30218 |
| Citation | 235 Ga. 836,221 S.E.2d 817 |
| Parties | Willis Edward GERMANY v. The STATE. |
| Court | Georgia Supreme Court |
O. Torbitt Ivey, Jr., Charles L. Wilkinson, III, Augusta, for appellant.
Richard E. Allen, Dist. Atty., Augusta, for appellee.
This is an out-of-time appeal following verdicts of guilty and jury-imposed consecutive sentences of 20 years for armed robbery, 10 years for aggravated assault, and 7 years for motor vehicle theft. The first issue involved on appeal is the sufficiency of the evidence to support the verdicts of guilty on two of those offenses, to wit: armed robbery and motor vehicle theft. The main issue, whether the evidence as to those two offenses was direct or circumstantial and whether the court erred in failing to instruct the jury on the law of circumstantial evidence, arises as a corollary of the first.
All three offenses occurred at a supermarket. The indictment charged the defendant with aggravated assault upon Palmer Williams, and armed robbery and motor vehicle theft from a Mrs. Tarlyn. Mrs. Tarlyn was wounded during a subsequent unrelated robbery and did not testify at the trial of this case.
The testimony shows that Palmer Williams, the assistant manager of the market, was in the process of closing on Sunday, December 19, 1971, at about 2 p.m. He had locked all of the money from the cash registers in the vault when he turned around to find a man later identified as defendant Germany pointing a pistol at his face. Another man, wearing a stocking on top of his head under his hat, was with the defendant, according to Williams. The defendant shoved Williams, threatened him and hit him over the head with the pistol, knocking him out.
When Williams regained consciousness, he saw the two cashiers, Mrs. Tarlyn and Mrs. Jones, lying face down on the floor. He saw the defendant crouched behind a rack, gun in hand, peering out at someone coming in the door. Mrs. Tarlyn's purse, which she normally kept in the office, was lying on the floor beside the defendant, with its contents scattered about. The other robber had gone from the store at this time. The defendant ordered Mrs. Tarlyn to give him her car keys and ran out the door.
Williams stated that he had just cashed a $655 check for Mrs. Tarlyn and he 'thought' that money was taken from her purse. Williams also testified that Mrs. Tarlyn's car was parked behind the store. After the defendant ran out the door, Williams tried to follow him but blacked out again and woke up in the hospital. Williams made an unequivocal identification of the defendant.
Mrs. Jones, one of the cashiers, testified that the defendant was the man who hit Williams on the head with a pistol, and that he then forced her to lie face down on the floor so that, although she could hear, the did not see anything which occurred after Williams was knocked out. She testified that no customers were in the store when the defendant entered, that she did not see an accomplice, and that the defendant was wearing a hat and had a stocking on top of his head which he tried to pull over his face without success. Mrs. Jones testified that Mrs. Tarlyn's money was in her purse and that Mrs. Tarlyn's car was 'taken.'
Willie Anderson, an employee of the market who was outside when the robbery occurred, stated that three men were involved. He saw one of them, wearing what appeared to be a ski mask, run from the store and leave with another man who was waiting in a Pontiac, about a 1959 model, with tag number LMI-896. Next Anderson saw the defendant come from the store, carrying a .32 or .38 caliber revolver. Mrs. Tarlyn came out at about the same time crying 'Don't take my car' and 'Someone please call the police.' The defendant went around the building. Anderson did not see the defendant take Mrs. Tarlyn's car because he went to the service station across the street to call the police.
A detective with the sheriff's department, Gary Hull, testified that he received an armed robbery report on December 19, that he spoke with Anderson and determined that 1971 tag number LMI-896 was registered to Willie Edward Germany, and that Mrs. Tarlyn's car was recovered about an hour later, pulled into some trees, undamaged, but that no fingerprints could be recovered. The defendant was arrested in his automobile the next day. No gun or sizable amount of money was found. Hull testified that his investigation had disclosed that five or six hundred dollars was taken from Mrs. Tarlyn's purse. On cross examination Hull stated that his records showed that the defendant was employed as a construction worker.
As heretofore noted, Mrs. Tarlyn did not testify because she had been shot in a later unrelated robbery.
Germany chose to make an unsworn statement, in which he denied that he committed the robbery, stating that he was at a girlfriend's house from 1:00 p.m. until 9:00 p.m. on the day of the robbery. He stated that he made $5.20 per hour as a cement finisher and had no reason to rob.
When the defendant finished his statement, the prosecution contended that he had put his character into evidence when he testified that he worked and did not need to commit robbery. The jury was sent out, and the State pointed out that the defendant had been convicted of robbing a grocery store and had gotten out of jail not long before this robbery. The defense argued that the defendant was not referring to his character when he said he worked and made a motion for a mistrial, arguing that if testimony as to working put the defendant's character in evidence, then Detective Hull had put the defendant's character in issue by testifying that he was a construction worker. This belated motion was denied and the defense rested. The State then rested without offering the defendant's conviction into evidence prior to the jury's deliberation as to guilt.
The court charged on the presumption of innocense and the burden of proof, reasonable doubt, the right to make an unsworn statement, the offenses of armed robbery, robbery by intimidation, aggravated and simple assault, and auto theft, the defense of alibi, and the forms of the verdicts. Upon request of the jury, the court later charged the law of conspiracy. The court did not charge on circumstantial evidence.
The defendant was found guilty of armed robbery, aggravated assault and motor vehicle theft.
1. The defendant contends that the evidence was insufficient to support the convictions of armed robbery and motor vehicle theft.
Regarding the motor vehicle theft count, the indictment charged the defendant with theft of a '1969 Pontiac, 2 door, 1971 Georgia Tag number LLV 270, color black top and brown bottom, property of Mrs. Morris Tarlyn, of the value of $2000.' Nowhere in the testimony of any of the witnesses is there any description of this automobile other than to 'Mrs. Tarlyn's automobile', e.g., 'Mrs. Tarlyn's automobile' was behind the store; 'Mrs. Tarlyn's automobile' was taken; 'Mrs. Tarlyn's automobile' was found. The evidence is not sufficient to sustain the conviction as to theft of the motor vehicle described in the indictment.
Regarding the armed robbery, the indictment charged that the defendant took from the person of Mrs. Morris Tarlyn $500 in money, the property of Mrs. Morris Tarlyn, of the value of $500, by use of a pistol. The evidence was sufficient to sustain the conviction of armed robbery.
2. However, the defendant contends that the evidence that $655 was taken from Mrs. Tarlyn was entirely circumstantial, and that the trial court erred in failing to charge, even without request, the law as to circumstantial evidence. McGruder v. State, 213 Ga. 259, 98 S.E.2d 564 (1957).
The State contends that the testimony of Officer Hull was direct evidence as to the taking of the money and that a charge on circumstantial evidence is not required where the State does not rely on circumstantial evidence alone. House v. State, 232 Ga. 140(5), 205 S.E.2d 217 (1974).
We must therefore determine the nature of officer Hull's testimony. It is true, as the defendant argues, that hearsay evidence has no probative value even if it is admitted without objection. 1 It is also true, as the State argues, that testimony given by an investigating law enforcement officer as to his conversations with victims and witnesses is admissible under Code Ann. § 38-302 not as hearsay but as original evidence. However, such testimony is admissible under that Code section as original evidence 'to explain conduct' of the investigating officer, not as original evidence of the defendant's guilt. See Patterson v. State, 233 Ga. 724 at 726, 213 S.E.2d 612 (1975). As the defendant correctly points out, if a police officer's testimony as to his conversations with victims and witnesses were admissible as original evidence of guilt, then testimony from eyewitnesses would become unnecessary.
As was correctly observed in Hix-Green Co. v. Dowis, 79 Ga.App. 412, 419, 53 S.E.2d 601, 606, (1949):
Thus, although admissible, Officer Hull's testimony as to the money being taken is not direct evidence, because his testimony in this case was based upon his investigation and not his personal observation or knowledge.
Decisions relied upon by the State, e.g., Lingerfelt v. State, 231 Ga. 354(4), 201 S.E.2d 445 (1973), and Watkins v. State, 231 Ga. 481, 202 S.E.2d 442 (1973), hold only that the testimony given by police officers was admissible to explain conduct. They do not hold that such testimony is admissible as evidence of guilt.
The State contends that there was direct evidence identifying the defendant, direct evidence that he was armed, direct evidence that Mrs. Tarlyn had $655 in cash, direct...
To continue reading
Request your trial
-
Roura v. State
...in Hamilton v. State, 96 Ga. 301, 22 S.E. 528 (1895). Compare Barrow v. State, 80 Ga. 191(3), 5 S.E. 64 (1887)." Germany v. State, 235 Ga. 836, 842(2), 221 S.E.2d 817 (1976). In Germany, the court refers to the reasonable hypothesis as "a plausible explanation," id., and finds crucial the f......
-
Cobb v. State, 35107
...being on the lookout for the car and of the arrest by them of the defendants when found in possession of the car. Germany v. State, 235 Ga. 836, 840(2), 221 S.E.2d 817 (1976); Phillips v. State, 206 Ga. 418(3), 57 S.E.2d 555 9. Photographs of the victim's face, showing the fatal wound, and ......
-
Hancock v. State
...829; Weaver v. State, 135 Ga. 317(2), 320, 69 S.E. 488; Boyd v. State, 201 Ga. 853(2), 41 S.E.2d 309. Accord, Germany v. State, 235 Ga. 836, 840-844(2), 221 S.E.2d 817. Here the defendants made a specific written request to charge the substance of Code § 38-109 with reference to circumstant......
-
State v. Allien
...where it has often been held that hearsay evidence is without probative value even if admitted without objection; Germany v. State, 235 Ga. 836, 221 S.E.2d 817 (1976), and cases cited therein; Lumpkin v. State, 524 S.W.2d 302 For a result similar to our own here, See also U. S. v. Biener, 5......