Massey v. State
| Decision Date | 05 May 1966 |
| Docket Number | No. 23439,23439 |
| Citation | 149 S.E.2d 118,222 Ga. 143 |
| Parties | DeWayne MASSEY v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. A defendant waives his right to plead former jeopardy on a second indictment
for the same offense when, as the result of his own efforts, the conviction under the first indictment is set aside, and a new trial is ordered.
2. The statute requiring a death sentence for rape where the jury does not recommend mercy does not violate the constitutional prohibition against cruel and unusual punishment.
3. The unsworn statement of the defendant did not demand that the trial judge charge the jury the provisions of Code Ann. § 27-1503, or the general principles of law relating to the question of insanity.
4. The trial judge did not err in admitting in evidence a knife identified by the victim as the knife used in her efforts to resist the defendant, as evidence in corroboration of her testimony that the crime of rape had been committed.
5. Code § 59-806(4), providing for the interrogation of a juror in a capital felony case in regard to his opposition to capital punishment, is not subject to the constitutional attacks made.
Floyd H. Wardlow, Jr., John R. Rogers, Ashburn, for appellant.
W. J. Forehand, Sol. Gen., Tifton, Arthur K. Bolton, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, Hugh Wilson, Ashburn, for appellee.
DeWayne Massey was indicted for the offense of rape at the October term, 1964, of Turner Superior Court. On the trial he was found guilty without a recommendation of mercy. On appeal to this court, the conviction was reversed and a new trial ordered, on the ground that the trial judge failed to fully comply with the rule of sequestration of witnesses. See Massey v. State, 220 Ga. 883, 142 S.E.2d 832.
The defendant was re-indicted for the same offense involving the same victim, as alleged in the first indictment, at the July term, 1965, of Turner Superior Court. Before plea and arraignment, he filed his plea of former jeopardy. The trial judge overruled the plea, and the defendant was again convicted without a recommendation of mercy.
The defendant filed a motion for new trial on the general grounds, which was amended by the addition of four special grounds. Error is assigned in the enumeration of errors on the denial of the motion for new trial, as amended. In his brief the defendant expressly abandons his assignment of error on the overruling of the general grounds of the motion for new trial. Two other assignments of error are made in the enumeration of errors.
1. In his first enumeration of error the defendant contends that the trial judge erred in overruling his timely plea of former jeopardy, on the ground that the second trial was for the same offense and based upon a second indictment, obtained at a time when the first indictment was still valid and subsisting.
The issue raised by this assignment of error was decided adversely to the defendant's contentions in Pride v. State, 125 Ga. 750, 54 S.E. 688. In the Pride case, after citing Irwin v. State, 117 Ga. 706, 45 S.E. 48, it was held:
In the present case the defendant was tried on the second indictment for the same offense as a result of his own efforts, in that the conviction under the first indictment was set aside, and a new trial ordered, based on a motion of the defendant, and he thereby waives the right to plead former jeopardy. See Sims v. State, 221 Ga. 190(4), 144 S.E.2d 103. There is no merit in the contention of the defendant raised in this assignment of error.
2. It is contended by the defendant in the second enumeration of error that the trial judge erred in sentencing the defendant to death for rape in a case where the victim survived the attack. It is asserted that this was cruel, unusual, and excessive punishment, and out of proportion to the offense; and that the statute under which the sentence was imposed (Code § 26-1302), which makes the death sentence mandatory upon the rendition of a guilty verdict without a recommendation of mercy, violates Art. I, Sec. I, Par. IX of the Constitution of this State (Code Ann. § 2-109), and the Eighth Amendment of the Constitution of the United States (Code § 1-808).
This contention was decided adversely to the defendant in Massey v. State, 220 Ga. 883(2), 142 S.E.2d 832, supra, in which this court in a full-bench decision held: 'We adhere to the ruling in Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766, that the statute requiring a death sentence for rape where the jury does not recommend mercy does not violate the constitutional prohibition against cruel and unusual punishments.' It is urged by counsel for the defendant that we review these 'previous decisions on the point, and reverse them, striking down the death penalty in rape cases where the victim does not lose her life.' We have reviewed these decisions and here reaffirm the conclusions therein reached.
3. In special ground 1 of the motion for new trial the defendant complains of the trial judge's failure to charge the provisions of Ga.L.1952, p. 205 (Code Ann. § 27-1503), to the effect that if the jury should believe the defendant's contention that he was insane or mentally incompetent under the law at the time the acts charged against him were committed, they should acquit him and specify in their verdict that the accused was acquitted because of mental irresponsibility or insanity at the time of the commission of the acts charged. In special ground 2 error is assigned because of the trial judge's failure to give the jury any instructions whatever on the general proposition of law that no insane person shall be found guilty of criminal acts charged against him which were committed while in such insane condition.
It is urged by counsel for the defendant that the unsworn statement of the defendant, unsupported by other evidence, constituted a contention that he was insane, or mentally incompetent, at the time of the commission of the alleged offense, within the meaning of Code Ann. § 27-1503; and that this statement required a charge on insanity, even without a request to charge, since this constituted the only defense of the defendant.
In Davis v. State, 216 Ga. 110, 114 S.E.2d 877, where the contention of insanity was sought to be raised solely by the statement of the defendant, this court made no specific ruling as to whether the contention referred to in Code Ann. § 27-1503 could be made by the defendant's statement alone, but the court did consider the statement, and make a ruling on its sufficiency to require a charge on the provisions of Code Ann. § 27-1503.
The statement of the defendant in the present case was as follows:
...
To continue reading
Request your trial
-
Williams v. State
...long as the legislature provides the death penalty for forcible rape, this court will uphold it. Sims v. Balkcom, supra; Massey v. State, 222 Ga. 143(2), 149 S.E.2d 118; Massey v. Smith, 224 Ga. 721(4), 164 S.E.2d 786, supra; Abrams v. State, 223 Ga. 216(11), 154 S.E.2d 443; Manor v. State,......
-
Miller v. State
...This court has held that if the juror answered this question affirmatively, he was incompetent to serve as a juror. Massey v. State, 222 Ga. 143(5), 149 S.E.2d 118; Mickens v. State, 149 Ga. 185(1), 99 S.E. 779. The ruling of the trial court was correct at the time it was made. Code §§ 59-8......
-
Cobb v. State
...right to a trial by an impartial jury; neither does it deny him due process of law, or the equal protection of the laws.' Massey v. State, 222 Ga. 143(5) 149 S.E.2d 118. See also Woolfolk v. State, 85 Ga. 69(9), 11 S.E. 814. Furthermore, appellant was not harmed by such qualification since ......
-
Massey v. Smith
...of death for rape. This is the third appearance of this case in this court. See Massey v. State, 220 Ga. 883, 142 S.E.2d 832; Id., 222 Ga. 143, 149 S.E.2d 118, cert. denied 385 U.S. 36, 87 S.Ct. 241, 17 L.Ed.2d 36. After a hearing the trial court remanded the applicant to the custody of the......