Herlong v. State, 30626
| Decision Date | 11 February 1976 |
| Docket Number | No. 30626,30626 |
| Citation | 223 S.E.2d 672,236 Ga. 326 |
| Parties | James HERLONG, Jr. v. The STATE. |
| Court | Georgia Supreme Court |
Floyd H. Wardlow, Jr., Ashburn, for appellant.
William J. Forehand, Dist. Atty., Tifton, Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.
James Gandy and James Herlong, Jr. were indicted, tried and convicted for murder. Each received a life sentence. Herlong filed the the present appeal.
1. Charlie Davis, a retired railroad employee and bootlegger, left his home, where he lived with his wife in Ashburn, Turner County, Georgia, at 6:30 p.m. on Saturday, January 19, 1974. When he failed to return home the following morning, his wife began searching for him. At approximately 2 p.m. on Sunday afternoon his wife and her nephew sighted the automobile he had left home in the night before approximately one and one-half miles from his home parked in a rear yard of the Gold Kist Peanut Company. The ignition keys were missing. They drove the automobile to his home by 'straight-wiring' the switch and upon arrival there they noticed blood on the fender and body of the automobile. They removed the back seat, found Davis' body stuffed in the trunk and called the police. A medical examination of the victim's body showed that he had been shot twice, once is the back of the head and once near the temple. Two .22 caliber bullets were removed from the victim's brain and delivered to State Crime Laboratory personnel. This medical examination also showed that the victim had five or six wounds in the head area inflicted by some sharp instrument. The examination was inconclusive as to whether the blows on the head or the bullet wounds were the cause of death, but either could have caused the victim's death.
An investigation to determine the last persons to see the victim alive led them to the State's witness, Rena Mae Brown, the appellants Herlong and Gandy, as well as others. As a result of such interrogation, a homemade pistol was obtained from Herlong's house trailer but none of these three named persons was kept under arrest. Testimony was adduced at the trial that tests made to determine if the bullets removed from the victim were fired by the pistol found in Herlong's trailer were inconclusive.
While Herlong, Gandy and Brown had all denied any knowledge of the crime during their first interview, further investigation resulted in an additional interview with Brown on Wednesday. On Thursday, with her consent, she was administered a polygraph test. Immediately following such polygraph test, arrest warrants were signed charging Gandy and Herlong with murder.
After Gandy and Herlong were arrested, Gandy, after having been advised of his constitutional rights, made a statement in which he admitted being present at the time the victim was slain and that he had 'tapped' the victim on the head with an iron pipe. On Saturday after his arrest on Thursday, Herlong told the sheriff that he had heard there were car keys and an iron pipe placed in a well some two miles east of Ashburn and that they had been placed there by a named individual. On Monday Herlong told a Georgia Bureau of Investigation agent that the named individual had come to his trailer on the night of the murder and told him that he had killed a man with a length of iron pipe and a pistol and had thrown these items in a well behind such person's residence. With a large magnet, the GBI agent retrieved a 24-inch length of iron pipe and two keys, one of which fit the ignition key on the victim's automobile.
While Herlong testified on the trial of the case that he never left his home on the night of the murder, and while his girlfriend testified that she was there with him until the approximate time of the murder, yet the testimony of Gandy and Rena Mae Brown authorized the finding by the jury that Herlong and Gandy approached Davis and offered to buy liquor from him, that Davis (accompanied by Rena Mae Brown) drove Herlong and Gandy to the area where the murder occurred, that when Davis got out of the automobile, walked to the back, opened the trunk to obtain the liquor to be sold to the defendants, he was shot by Herlong and beaten over the head by Gandy, which shooting and beating caused his death. The verdict of guilty was authorized by the evidence.
2. Under decisions exemplified by Sinkfield v. State, 231 Ga. 875(2), 204 S.E.2d 588 (1974), it was not error to admit into evidence a handgun found at the home of the defendant Herlong where there was testimony that such gun was similar and looked like the gun used in the homicide.
3. The sole remaining enumeration of error to be considered complains that the trial court erred in admitting testimony that the witness Rena Mae Brown was given a lie detector test and that immediately thereafter arrest warrants were obtained. The appellant relies upon the decision in Stack v. State, 234 Ga. 19, 23, 214 S.E.2d 514 (1975) and makes the contention that such testimony imputes veracity to the testimony of Rena Mae Brown by raising an inference that such lie detector (polygraph) test showed her testimony implicating Herlong to be true. The decision in Stack did not require, as a matter of law, that a new trial be granted on every occasion where a jury is apprised that a lie detector test has been given.
The admission of the evidence in this case that Rena Mae Brown had been given a lie detector test and that immediately thereafter arrest warrants were obtained for the defendants was not error. This testimony was admissible to explain the conduct of the officers. See Code § 38-302.
In Stack v. State, supra (p. 21, 214 S.E.2d p. 516) it was held: ...
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