Ledford v. State

• Decision Date: 16 March 1960
• Docket Number: No. 20791,20791
• Citation: 113 S.E.2d 628,215 Ga. 799
• Parties: William Hoyt LEDFORD v. STATE.
• Court: Georgia Supreme Court

Page 628

113 S.E.2d 628

215 Ga. 799

William Hoyt LEDFORD v. STATE.

No. 20791.

Supreme Court of Georgia.

March 16, 1960.

Rehearing Denied March 30, 1960.

James I. Parker, Cedartown, Harold L. Murphy, D. B. Howe, Buchanan, for plaintiff in error.

Dan Winn, Sol. Gen., Cedartown, John T. Perran, Asst. Sol. Gen., Dallas, Eugene Cook, Atty. Gen., Rubye G. Jackson, Deputy Asst. Atty. Gen., for defendant in error.

Syllabus Opinion by the Court

CANDLER, Justice.

William Hoyt Ledford was indicted in Polk County for the murder of Virgil Glenn Gray, Jr. He was tried, convicted of the offense charged in the indictment without a recommendation for mercy, and was sentenced to be electrocuted. He moved for a new trial, basing his motion on the usual general grounds and subsequently amended it by adding several special grounds. His amended motion for a new trial was denied, and the exception is to that judgment. Held:

1. Before being arraigned for trial, the defendant filed a motion to quash the indictment on the ground that it was null and void because it was found and returned as true by the grand jury without sufficient evidence to authorize the charge contained therein. After hearing evidence in support of and against the motion, the court denied it, and one of the special grounds of the motion for new trial alleges that such judgment is erroneous and requires a reversal of the judgment refusing to grant a new trial. There is no merit in this position since this ruling cannot properly be raised in a motion for new trial but such ruling, if insisted on, should have been directly excepted to in the bill of exceptions since it relates to an attack on the legal sufficiency of the indictment. Seymour v. State, 210 Ga. 21(1), 77 S.E.2d 519, and the several cases there cited.

2. Special grounds 16, 22 and 23 of the motion for new trial have been expressly abandoned in the brief filed in this court for the plaintiff in error and for that reason they will not be considered.

3. Before the introduction of evidence began, the defendant invoked the rule of sequestration of the witnesses as provided for by Code § 38-1703. The solicitor general then requested the court to permit Sergeant Bernard Young, a member of the Arkansas Police Department and a witness for the State, to remain in the courtroom during the trial to assist him in the prosecution of the case, stating as his reason for such request that he (the witness) had participated in the investigation of the case more than any other officer. Whereupon counsel for the defendant, as his objection to the request, stated to the court, 'We object to some Arkansas officer helping prosecute this man.' The request was granted by the court and this ruling is excepted to in one of the special grounds of the motion for new trial. Respecting the solicitor-general's request, the trial judge had discretionary power to grant or refuse it, and in the circumstances of this case we will not hold that he abused his discretion by permitting the witness Young to remain in the courtroom during the trial for the purpose of aiding the solicitor general in the prosecution of the case. See Justice v. State, 213 Ga. 166, 97 S.E.2d 569, and the cases there cited which include Poultryland, Inc. v. Anderson, 200 Ga. 549, 562, 37 S.E.2d 785, 793, where it was said by a full bench that 'the rule fixed by the Code of 1863, § 3787 and contained in all subsequent Codes, as to the sequestration of witnesses, conferred upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case * * *.' Accordingly there is no merit in this special ground.

4. The solicitor general in outlining his case to the jury stated that he expected to prove by evidence that 'the defendant was arrested in Oklahoma by Federal authorities on a complaint charging him with taking an automobile across the state line.' At this point counsel for the defendant moved for a mistrial on the ground that the statement of the solicitor general placed the character of the accused in evidence when he (the accused) had not first elected to do so. As to the motion for mistrial, the court said: 'Gentlemen of the jury, counsel for the defendant has made a motion for a mistrial on account of certain remarks that counsel for the State made. I instruct you that counsel is merely making a statement of what he expects to prove in the case. That is not evidence until it is proven. You will disregard any statement with reference to any other crime, and consider only the evidence in this case and base your verdict thereon. What counsel states in his opening statement, or any statement, is merely what he contends is the evidence or reasonable deductions drawn therefrom. So, you will disabuse your minds of anything that has been said and not consider it in making your verdict, and in the last analysis you make your verdict based on the evidence in the case. I overrule the motion with that explanation.' In view of the court's instruction to the jury, we hold that he did not err in refusing to grant a mistrial. Hence the special ground which complains of this is not meritorious.

5. While the Sheriff of Polk County, John Redding, was testifying as a witness for the State, he was, over objection of the defendant, permitted to read to the jury a statement which the accused had dictated to him and which recites: 'I have made this statement freely and voluntarily, without any hope of reward or benefit or fear of punishment' and the statement speaks of a trip north of Cedartown, Georgia, which the accused had made that day (October 16, 1958) with Sheriff Redding and it recites that the place to which they had gone together was the spot where Virgil Glenn Gray, Jr., was killed. It also recites that the place to which they went on that day was the spot about two miles north of Cedartown, Georgia, as mentioned in a written statement he (the accused) made to a certain officer in Oklahoma City, Oklahoma. The witness Redding testified that the written statement which the accused dictated to him was freely and voluntarily made, without any hope of reward or fear of punishment, and that the spot pointed out to him as being the place where the deceased Gray was killed was in Polk County, Georgia. The statement was signed by the accused and witnessed by Sheriff John Redding, Dan Winn and James H. Hines. The statement was objected to 'on the ground that the subscribing witness * * * Dan Winn and James H. Hines have not identified the statement, neither has the State accounted for their absence.' The statement was also objected to on the ground that the taking of it by Sheriff Redding without first apprising the defendant of his right to counsel was a denial of his right to have the assistance of counsel in violation of Article VI of the amendments to the Constitution of the United States and was also a denial of the privilege and benefit of counsel guaranteed by Article I, Paragraph V of the Constitution of Georgia. These objections are without merit, and the special grounds of the motion for new trial which complain of them show no error.

6. Weldon Gentry, a witness for the State, was permitted by the court to read to the jury a written statement which the accused made to him and another agent of the Federal Bureau of Investigation, except the following part of it which the court ordered him not to read: 'I was released from the Federal Prison, Atlanta, Georgia on September 30, 1958. My number in prison was 76160, and I was doing five years for robbing a mail clerk of his pistol. After release * * *.' The part thereof as read to the jury by the witness being: 'I, Hoyt Ledford, give the following voluntary signed statement to Daniel J. Maloney and Weldon C. Gentry who have identified themselves to me to be Special Agents of the Federal Bureau of Investigation. I have been told I do not have to give of make a statement; that I am entitled to a lawyer; and that anything I say can be used against me in a court of law. My name is W. Hoyt Ledford, I am 43 years old and my residence is Chatsworth, Georgia. On 9-30-58, I went to the Piedmont Hotel in Atlanta and rented a room and told the bell boy to send a prostitute up to my room. Susan Jeffries came to my room. I later learned her name was Lorraine Stanga. She and I became friendly during the week of September 30, 1958, and I stayed at her apartment on Thursday and Friday nights of that week. During this week Stanga told me she was on parole from some city in Arizona on check charges and that she had a plan to make some money. Stanga stated to me that she had been dating a man named Virgil Glenn Gray who had an automobile and carried a big roll of money. She said we could rob and kill Gray, and take his car and he wouldn't be missed for some time as he was a traveling man. Stanga and I then planned for her to have a date with Gray on Saturday night October 4, 1958, in his car. After the date she was to bring Gray by her apartment where I would be waiting and we would then pull the robbery. On Saturday Gray called Stanga and they were to go to dinner at 5 or 6 p. m. Gray came by and Stanga went out to the car and got in before Gray had a chance to come in. Later in the evening Stanga called me at her apartment and said she and Gray would come to the apartment at about 9 p. m. At about 9 p. m. a car came up to the apartment and stopped. Stanga and Gray came in and I was hid behind the door. I had earlier in the evening purchased a 38 caliber revolver. At they came in I pulled this gun and told Gray to do as he was told and he wouldn't get hurt. Gray wheeled and drew back his fist and I hit him on the side of his head with the gun. We then got in Gray's car. Stanga was driving, Gray was in the front seat and I was in the rear seat behind Gray. We drove...