Gunter v. State

• Decision Date: 23 March 1967
• Docket Number: No. 23992,23992
• Citation: 154 S.E.2d 608,223 Ga. 290
• Parties: Frederick Howard GUNTER v. The STATE.
• Court: Georgia Supreme Court

Page 608

154 S.E.2d 608

223 Ga. 290

Frederick Howard GUNTER v. The STATE.

No. 23992.

Supreme Court of Georgia.

March 23, 1967.

Rehearing Denied April 20, 1967.

Syllabus by the Court

1. For reasons stated in the opinion the trial court did not err in denying the motion for new trial, and the enumerated errors are without merit.

Wendell Helton, Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., J. Walter LeCraw, J. Roger Thompson, Amber W. Anderson, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Asst. Atty. Gen., Alexander Cocalis, Deputy Asst. Atty. Gen., Atlanta, for appellee.

MOBLEY, Justice.

Appellant was indicted, tried, and convicted of rape without recommendation and was sentenced to death. From that verdict and judgment he filed a motion for new trial on the general grounds and a number of special grounds which the trial court overruled. He enumerates 26 errors, which include the grounds of his motion for new trial as amended.

1. The general grounds of the motion for new trial are without merit. In addition to the evidence amply supporting the verdict of guilty, the defendant in his unsworn statement admitted that he committed the act of rape charged in the indictment, as well as others.

2. Exclusion under Code § 59-806(4) of persons conscientiously opposed to capital punishment in the trial of a capital case is not a denial of rights of the accused under the 6th or 14th Amendments to the United States Constitution. See Abrams v. State, 223 Ga. 216, 154 S.E.2d 443. Massey v. State, 222 Ga. 143, 151, 149 S.E.2d 118; Cherry v. State, 220 Ga. 695, 698, 141 S.E.2d 412; Mickens v. State, 149 Ga. 185, 99 S.E. 779. This is the uniform rule in this country. See 50 C.J.S. Juries § 245, p. 999 and 48 A.L.R.2d 560-604 and cases cited. See also Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429, where that court in dealing with the question of whether jurors, who do not believe in the death penalty, are qualified in capital felony cases stated: 'A juror who has conscientious scruples on any subject, which prevent him from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence, is not an impartial juror.'

3. Enumeration of error No. 8 complains that the solicitor general propounded to one of the victims of rape by the appellant, the question: 'After he finished this dastardly deed what did you do and what did he do?' and that the court denied his motion for mistrial. The solicitor general immediately withdrew the reference to the 'dastardly deed,' and the court rebuked the solicitor general and cautioned the jury to exclude the remarks from their minds entirely. Defense counsel did not thereafter renew his motion for mistrial. Thus, this ground is without merit. Cherry v. State, 220 Ga. 695(5), 141 S.E.2d 412.

4. Enumerations of error Nos. 2, 4, 6, 9, 10, and 12 complain of the admission of evidence as to other sexual assaults made by the defendant upon two women and two children. The evidence shows that the defendant committed these sexual assaults by a common method in the same general geographic neighborhood within 2 1/2 months after the offense for which he was on trial. The evidence was 'admissible on his trial for the purpose of identifying him as the guilty party and for the purpose of showing motive, plan, scheme, bent of mind, and course of conduct.' Anderson v. State, 222 Ga. 561(3) 150 S.E.2d 638 and cases cited. See also Allen v. State, 201 Ga. 391, 40 S.E.2d 144 where the facts are very similar to those here. In each case there was evidence that the defendant had committed sexual assault in the general area by employing a knife as a means to intimidate and frighten the victims into submission. See also Dorsey v. State, 204 Ga. 345(2), 49 S.E.2d 886 and Mosley v. State, 211 Ga. 611(2), 87 S.E.2d 314.

5. Enumerations of error Nos. 5 and 11 are without merit. Number 5 complains of the admission of evidence of one of the victims of rape that she had also been raped by the defendant, because she was not able to identify him. However, there was evidence that like palm prints of the defendant were found on her window shortly after the offense was committed, which is evidence that he was the guilty party in her case.

Number 11 complains of the admission of testimony of a witness, a brother-in-law of another of the victims of rape, that shoes shown him were similar to those he saw on the man running out of their house and through the yard just after the sexual assault upon her and that the mud on them was similar to that in their yard. This evidence was admissible to show identification of the defendant. If relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. Lovejoy v. Tidwell, 212 Ga. 750, 751, 95 S.E.2d 784 and cases cited.

6. Enumeration of error No. 7 complaining that the court erred in admitting evidence of the assault upon another woman than the one named in the indictment, because the state did not prove venue in that case, is without merit. This was not necessary, as the State was only required to prove venue in the case on trial.

7. Enumeration of error No. 8. The court did not err in refusing to grant defendant's motion for mistrial for remarks made by the solicitor general while defendant was questioning a witness as to the identity of a detective to whom she had talked. She said she did not know his name but she had seen him outside the courtroom. Defense counsel asked the sheriff to bring three detectives into the courtroom, whereupon the solicitor asked counsel which detectives he wanted, saying: 'Detectives Cameron, Eskew, which ones?' The witness had already said she could not identify the detective by name, therefore the solicitor's remark could not have aided the witness or prejudiced the defendant's case.

8. Enumeration of error No. 13. The admission in evidence of palm prints of the defendant, taken without objection shortly after he was taken in custody for comparison with palm prints found at the scene of the crime was not in violation of any of his constitutional rights. The evidence was that he made no objection to the taking of the prints. The provision of the Constitution, Code Ann. § 2-106, provides that no one shall be compelled to give evidence tending to criminate himself, and where as here, the defendant voluntarily submitted himself to fingerprinting, there has been no violation of this constitutional provision....