Jung v. State

• Decision Date: 09 June 1976
• Docket Number: No. 30925,30925
• Citation: 226 S.E.2d 599,237 Ga. 73
• Parties: Richard George JUNG (James Valenzule) v. The STATE.
• Court: Georgia Supreme Court

Page 599

226 S.E.2d 599

237 Ga. 73

Richard George JUNG (James Valenzule) v. The STATE.

No. 30925.

Supreme Court of Georgia.

June 9, 1976.

Scott Walters, Jr., East Point, for appellant.

E. Mullins Whisnant, Dist. Atty., William J. Smith, Asst. Dist. Atty., Columbus, Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

HILL, Justice.

A jury found the defendant and Phillip Eugene Campbell guilty of armed robbery. The trial judge sentenced the defendant to eighteen years and Campbell to fifteen years. The defendant enumerates as error the admission of numerous items into evidence, several alleged expressions of opinion made by the trial judge, and the eighteen year prison sentence he received.

At trial the State introduced evidence to show that on the morning of October 21, 1974, two men, one carrying a shotgun and the other a pistol, entered the victim's home and took a large amount of money. At the time of the robbery the house was occupied by the wife of the homeowner, the maid, the wife's mother-in-law, and a four year old child. The four victims were with the robbers for approximately half an hour.

The three adult victims positively identified the defendant at a lineup and also in court. There is no question that the jury verdict was authorized by the evidence.

1. The defendant complains of the admission into evidence of several items not positively identified as having been involved in the crime. He takes the position that the accumulation of these erroneous admissions plus the court's expressions of opinion (discussed in Division 2) deprived him of a fair trial. We first must determine whether or not the introduction of each particular item was error.

The State introduced a pistol and holster which were found on the defendant at the time of his arrest. According to the testimony of the victims, one of the robbers used a pistol to carry out the armed robbery. A blue shirt, navy blue trousers, and jacket which belonged to the defendant were also introduced. The wife testified that one of the robbers, whom she identified as Jung, had on a blue shirt that was very close in color to the shirt placed in evidence, but she could not say positively that he was wearing the same shirt. She also said the pants and jacket were similar in color. She stated that the lining of the jacket worn at the robbery was exactly the same as the lining of the jacket introduced.

Where there is evidence that the perpetrator of a robbery wore certain clothing and carried a pistol, similar items belonging to or found in the possession of the defendant are properly admitted for the jury to consider. Evans v. State, 228 Ga. 867(4), 188 S.E.2d 861 (1972); Katzensky v. State, 228 Ga. 6(3), 183 S.E.2d 749 (1971). Paraphrasing Lively v. State, 178 Ga. 693, 695, 173 S.E. 836 (1934), it appears without dispute that the crime was committed with a pistol, and it would make no material difference whether or not the pistol found on the defendant was the particular gun with which the crime was committed. The identification was sufficient to authorize the jury to decide, under the evidence relative to identification, whether or not it was the identical weapon used by the defendant.

The United States Supreme Court in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), found no violation of due process by the introduction into evidence of a 16-gauge shotgun found in Moore's possession at the time of his arrest, even though there was evidence that the murder weapon was a 12-gauge gun. The Court stated: '(W)e cannot say that the presentation of the shotgun was so irrelevant or so inflammatory that Moore was denied a fair trial.' Moore, p. 800, 92 S.Ct. p. 2570.

The defendant's request that Lively v....