Henderson v. State

Decision Date03 December 1970
Docket NumberNo. 26046,26046
Citation179 S.E.2d 76,227 Ga. 68
CourtGeorgia Supreme Court
PartiesTommy Lee HENDERSON v. The STATE.

Syllabus by the Court

1. Where the indictment charged in separate counts two separate and distinct offenses committed by the same person against different persons, and where it appeared that the offenses, though differing in their nature and in the kind of evidence necessary to prove them, were committed as a part of the same continuing transaction, the trial court did not abuse its discretion in refusing to order separate trials of the charges. Code § 26-506.

2. It was not error to refuse to order the district attorney to turn over to counsel for the accused a written statement made by the State's chief witness. nor was it error to refuse to order the production for inspection and copying of police and investigation reports made by the police in the course of investigating and preparing the case against the accused.

3. Prospective jurors who indicated by their answers given to questions propounded to them on their voir dire that they would under no circumstances vote to impose the death penalty were properly excluded.

4. Where the indictment charging the accused with kidnapping with injury to the victim was drawn under the provisions of Code § 26-1311 and specified the way and manner in which such injury was inflicted there was no error in permitting the indictment to be read to the jury, in admitting evidence in proof of the way and manner in which the injury was inflicted, in instructing the jury as to the purpose of such evidence and in refusing a mistrial on account of statements made in relation thereto by the district attorney in his opening statement and argumetns to the jury notwithstanding that the manner in which the alleged injury to the victim was inflicted constituted the commission of an entirely separate and distinct crime for which the accused was not on trial.

5. Photographs of the body of the deceased, a knife identified by a witness as the one used by the accused in the perpetration of the crimes, and bloodstained clothing identified as that worn by the kidnap victim when she was kidnapped were properly admitted in evidence.

6. Ground 9 of the enumerations of error shows no cause for reversal.

7. (a) The refusal of the court to grant a mistrial on account of the use by the district attorney of the word 'kidnapping' in questioning a witness and in a colloquy between the court and counsel was not error in view of the admonition of the court to the district attorney and the later instructions to the jury.

(b) Evidence of the flight of the accused and of his intoxicated condition when arrested was properly admitted.

8. There being ample evidence that the written statement of the defendant was voluntarily made, it was not error to admit it in evidence and to permit it to be read to the jury.

9. (a) Under the facts of this case, neither voluntary manslaughter, involuntary manslaughter nor killing by accident or misfortune was involved, and instructions as to the law in these regards were properly refused.

(b) The refusal of a request to charge which was couched in language inappropriate to the law as embodied in the Criminal Code of Georgia was not error.

10. Testimony of a medical witness as to his findings upon examination of clothing referred to in Division 5 and the corresponding headnote above was properly admitted.

11. The evidence authorized the verdict. It amply showed that the kidnapping and the murder were perpetrated in DeKalb County, Georgia, thus fixing the venue of the trial.

Charles M. Clayton, Louise T. Hornsby, Atlanta, for appellant.

Richard Bell, Dist. Atty., Eugene Highsmith, Decatur, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Charles B. Merrill, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.

HAWES, Justice.

Tommy Lee Henderson was indicted in the Superior Court of DeKalb County in a 3-count indictment charging him with kidnapping, murder and rape. On his arraignment he pled not guilty. Upon the call of the case for trial, the defendant filed a motion to require the State to elect upon which of the charges it would try the defendant. The court sustained the defendant's motion as to the count charging him with rape, but overruled it as to the counts charging him with kidnapping and murder. Upon the trial of the case, the evidence introduced on behalf of the State made substantially the following case: The kidnap victim, a young girl, seventeen years of age, a high school senior, was employed on a part-time basis at the Southern Bell Telephone Exchange located on East Lake Drive, Decatur, DeKalb County, Georgia. On August 18, 1969, at approximately 3:15 p.m., she drove her red Volkswagen automobile into the parking lot adjacent to the said telephone exchange and was preparing to alight therefrom to go to work when she was approached by two negro men, one of whom, the accused, placed a knife against her stomach and ordered her to 'slide over,' telling her that if she would keep her mouth shut she wouldn't get hurt. The two men entered her car and the accused drove the automobile from the aforesaid parking lot while the other, identified as Benjamin Franklin Edwards, rode in the back seat with the girl in the front. At one point, the automobile was stopped and the girl was forced to get into the back seat. She was driven to a secluded spot located in DeKalb County where she was forced to disrobe and forceably raped by Benjamin Franklin Edwards. She was then permitted to put her clothes back on and taken by the two men to another spot in DeKalb County after making several intermediate stops where she was again raped by Edwards and forced by him to submit to an unnatural sex act. Following that, the accused and Edwards resumed a previous argument in which they had been engaged which was culminated by the accused stabbing Edwards twice in the abdomen with a pocket knife. Edwards staggered from the immediate scene and his body was later found by police officers a short distance therefrom. Thereafter, the kidnap victim, who was, of course, the chief witness for the State, was taken by the defendant under continuous threat in the form of a constantly exhibited knife to different places in DeKalb and Rockdale Counties. She was taken to the residence of people known to the accused where she was compelled to spend the night under the explanation by the accused to them that she and the accused were husband and wife. That residence was located in Rockdale County, and while there the accused forced her to submit to sexual relations on at least three separate occasions, all the while constantly holding a knife on her and threatening to kill her if she made an outcry or complaint. The next morning, she was carried to a number of other places located in Rockdale County, still under the same threat, returned to the same house where she had spent the night, and there held until she was finally rescued by the Sheriff of Rockdale County bursting into the house as the defendant exited from the rear thereof and fled the scene. The testimony of a man who observed a struggle between the girl and Edwards in the rear seat of her car as it was being driven along an expressway, followed the car, noted its tag number and reported what he had seen to the police, of police officers, the sheriff and of medical witnesses was introduced by the State in corroboration of the testimony of the principal witness. The defendant testified under oath, his defense being in substance that it was Edwards who perpetrated the kidnapping, if there was a kidnapping at all, that he did not know that Edwards and the girl were not friends, and that he thought that the girl voluntarily and willingly accompanied Edwards. The defendant denied that he had sexual relations with the girl at any time, or that he ever exercised any force or made any threats to compel her to accompany him or Edwards. The jury found the defendant guilty on each of the counts on which he was tried. The court passed a sentence of death by electrocution as to each of those counts, and the defendant's motion for a new trial having been overruled he appealed to this court enumerating 30 grounds of alleged error.

Such other facts as may be necessary to a clear understanding of the rulings made will be set forth in the opinion.

1. The crimes with which the defendant was charged were committed on the 18th day of August, 1969, which was after the effective date of the Criminal Code of Georgia (Ga.L.1968, pp. 1249 et seq., as amended by Ga.L.1969, pp. 857 et seq.). Subsection (b) of Code § 26-506, as rewritten by those Acts, provides, 'If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c).' Subsection (c) of the Code section reads: 'When two or more crimes are charged as required by subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately.' Counsel for the accused, when the case was sounded for trial, filed a written motion to require the State to elect on which of the three charges it would try the accused, to wit, kidnapping, murder or rape. The court ordered the count charging rape stricken but permitted the case to go to trial on the other two counts. That ruling is made the subject of two grounds of enumerated error.

Prior to the 1968 Criminal Code of Georgia the law with respect to the joinder on one prosecution of multiple offenses was clearly and succinctly stated in the case of Gilbert v. State, 65 Ga. 449, 450, as follows: 'A general rule in criminal pleading is that a defendant cannot be charged with separate offenses in the...

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