Lingo v. State, 25788

• Citation: 175 S.E.2d 657,226 Ga. 496
• Decision Date: 08 June 1970
• Docket Number: No. 25788,25788
• Parties: Joe LINGO, Jr. v. The STATE.
• Court: Supreme Court of Georgia

Page 657

175 S.E.2d 657

226 Ga. 496

Joe LINGO, Jr. v. The STATE.

No. 25788.

Supreme Court of Georgia.

June 8, 1970.

Rehearing Denied June 25, 1970.

Syllabus by the Court

1. Appellant's trial was properly limited to the sole issue of punishment.

2. Denial of appellant's motion for mistrial based upon an alleged improper question was not error.

3. A police officer's testimony as to what the victim told him was admissible as part of the res gestae.

4. The giving in charge to the jury of Code Ann. § 26-1005, as to punishment for murder, was proper.

E. G. Shaffer, Atlanta, for appellant.

George A. Horkan, Jr., Dist. Atty., Moultrie, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Wade V. Mallard, Jr., Atlanta, for appellee.

GRICE, Justice.

Joe Lingo, Jr., appeals to this court from a sentence of death. In a previous trial he had been convicted of murder and sentenced to death, and this court affirmed that conviction and sentence. Lingo v. State, 224 Ga. 333, 162 S.E.2d 1.

However, upon habeas corpus proceedings in the Superior Court of Tattnall County, that court found there had been improper exclusion of jurors opposed to capital punishment, and remanded the case to the Superior Court of Lowndes County, where he was originally tried, for further proceedings in accordance with Miller v. State, 224 Ga. 627, 163 S.E.2d 730.

In the Miller case, this court held that 'Under the ruling in * * * (Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776) the sentence of death in the instant case is illegal * * * the verdict and judgment of conviction for rape are affirmed. The sentence imposed on the verdict is reversed with direction that the trial court impanel a jury selected as in a capital case for the submission to it of the sole question: Should the defendant be recommended to mercy and sentenced according to Code Ann. § 26-1302 (Ga.L.1960, p. 266)? In the selection of the jury for such trial, no member of the jury panel shall be excused for cause solely because of his being opposed to capital punishment. However, the State will have the right to challenge for cause any prospective juror who states that his reservations about capital punishment would prevent him from making an impartial decision as to a defendant's guilt of rape. Furthermore, the State is not prevented from asserting the right to exclude from the jury any juror who states that he could never vote to impose the death penalty or that he would refuse even to consider its imposition in the case before him.' P. 636, 163 S.E.2d at p. 736.

Upon the return of the case to the Superior Court of Lowndes County and before trial, the appellant filed 'motions and objections,' a motion to dismiss, and orally moved for jury trial on the issue of both guilt and punishment, rather than punishment only. These motions, all of which raised objections to trial on the limited issue of sentence, were denied.

Trial was had as to punishment only, and the jury did not recommend mercy. Whereupon, the trial judge imposed the sentence of death.

The appellant's motion for new trial, as amended, incorporated the previous motions and objections and the motion to dismiss, and also complained that the trial court erred in denying the oral motion to grant a jury trial on guilt as well as punishment. It urged that in granting a jury trial on the issue of punishment only the trial court denied the appellant due process of law and the right of counsel as guaranteed by the State and Federal Constitutions, in that there is no authorization for a jury trial on the limited issue of punishment only and no standards or rules prescribed for such a proceeding. The motion also complained of the failure to grant a mistrial for an alleged improper question and of the admission of certain evidence, which will be referred to later. This motion for new trial was denied.

Enumerated as error are the denial of the motion for new trial, denial of the motions and objections relating to trial on the issue of punishment only, denial of the motion for mistrial, admission of certain evidence, and a portion of the charge to the jury.

1. Appellant's attacks upon his trial by jury on the sole issue of punishment are foreclosed against him by many recent decisions of this court. See in this connection, Miller v. State, 224 Ga. 627, 633-636, 163 S.E.2d 730, supra; Massey v. Smith, 224 Ga. 721(8), 164 S.E.2d 786; Arkwright v. Smith, 224 Ga. 764(1), 164 S.E.2d 796; Jones v. State, 224 Ga. 782, 164 S.E.2d 831; Williams v. Smith, 224 Ga. 800, 164 S.E.2d 798; Brawner v. Smith, 225 Ga. 296, 298-299, 167 S.E.2d 753; Alexander v. State, 225 Ga. 358, 360, 168 S.E.2d 315; Williams v. State, 226 Ga. 140(6), 173 S.E.2d 182; Arkwright v. State, 226 Ga. 192(2), 173 S.E.2d 179.

2. Likewise, there is no merit in the appellant's contention that the trial court erred in denying his motion for mistrial which asserted that a prejudicial and improper question was propounded to a witness by the district attorney.

The question was 'Now, Mrs. Willis state whether or not you ever talked to your husband * * * (the deceased), about the possibility that he might be robbed late...