McCrary v. State

• Court: Supreme Court of Georgia
• Citation: 314 S.E.2d 662,252 Ga. 521
• Docket Number: No. 40458,40458
• Parties: McCRARY v. STATE.
• Decision Date: 17 April 1984

Page 662

314 S.E.2d 662

252 Ga. 521

McCRARY v. STATE.

No. 40458.

Supreme Court of Georgia.

April 17, 1984.

Rehearing Denied May 15, 1984.

Michael Edward Bergin, Bergin & Bass, East Point, for Michael Wayne mCcrary.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Thomas N. Hayes, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Paula K. Smith, Staff Asst. Atty. Gen, Atlanta, for the State.

HILL, Chief Justice.

Michael Wayne McCrary was indicted and tried for the malice murder of his cousin, Greg Barksdale Brooks. He was found guilty of felony murder and sentenced to life in prison. He appeals. ¹

The victim was last seen on Friday evening, June 4, 1982, in the company of the defendant and George Martin (also a cousin) and two girls, fifteen and sixteen years old. Earlier that day the victim had been given a $25.00 cash deposit for the rental of his home in Red Oak in Fulton County. When the group returned the victim to his home after about three hours of driving around, the defendant got out of the car and asked the victim for some money. While they were talking, one of the girls got tired of waiting and walked down the road. After a few minutes George Martin and the other girl drove down the road to find her, but when they could not they returned after about ten minutes to the victim's house to pick up the defendant. As they arrived, they found the defendant emerging from the bushes. As he got in the car, he said: "Man, I had to hit that ... a couple of times." Then he took out some money and began counting it. The victim was never seen alive again.

After that night, George Martin heard the defendant make statements to the effect that the victim would not be around any more. A few weeks later, while with his brother, Kevin McCrary, and another cousin, Thomas McCrary, the defendant confided to them that he had put the victim down the well at his house head first. Kevin looked down the well but didn't see anything; he returned about a week or week and a half later with the victim's brother and saw an object in the well. The police were called and the victim's badly decomposed body was removed from the well. Because of the condition of his body, it could not be established whether or not he also drowned, but it was clear to the medical examiner that the 2 skull fractures on his head, which possibly resulted from hitting 2 pipes at the bottom of the 40 foot well, would have been fatal.

The defendant testified that he had been with his cousins and the two girls on an earlier evening, May 28, 1982, and did not see the victim on June 4, 1982, the day he was last seen alive. He did state, however, that on that earlier date he had stayed with the victim to finish a half pint of whiskey while George Martin and one of the girls drove off to find the other girl who had gotten out of the car, that the whiskey was soon finished, and that he walked down the road to his mother's house where he was picked up by the returning George. He denied that he killed the victim.

Although the evidence as to robbery is circumstantial, the evidence is sufficient to support the conviction of the defendant for felony murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The trial court charged the jury on the definitions of malice murder, felony murder and robbery, and the evidence warranted those instructions. ²

However, the indictment charged the defendant with the offense of murder and alleged that the accused, on June 4, 1982, "did unlawfully and with malice aforethought, cause the death of Greg Barksdale Brooks, a human being, by striking and beating him with, and by throwing him against some object which is to the Grand Jurors, unknown."

The defendant enumerates as error that his conviction for felony murder, with the underlying felony being robbery, was a violation of the due process clauses of the state and federal constitutions, and that his conviction for felony murder, with the underlying felony being robbery, was error because there was a material variance between the indictment and the evidence adduced at trial. The criteria for determining whether there is a fatal variance between the indictment and the evidence are set out in DePalma v. State, 225 Ga. 465, 469-470, 169 S.E.2d 801 (1969), adopting those set out by the United States Supreme Court in Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935): " 'The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense.' " Accord, Wilson v. State, 250 Ga. 630, 633, 300 S.E.2d 640 (1983).

In Goldin v. State, 104 Ga. 549, 550, 30 S.E. 749 (1898), the defendant was indicted for assault with intent to rape and the jury found him guilty of assault and battery. This court reversed, finding that the indictment did not allege a battery, saying: "It is an elementary principle of criminal procedure that no person can be convicted of any offense not charged in the indictment. There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater offense but where the language used in the indictment is sufficient to embrace the smaller offense."

In Watson v. State, 116 Ga. 607, 612, 43 S.E. 32 (1902), a conviction of pointing a pistol at another was upheld where the indictment had charged murder and alleged that the murder was caused by the defendant's shooting and discharging a loaded pistol at the victim and thereby wounding him and causing his death. There the court found: "Of course, in order for a conviction of a lesser crime to be warranted, the greater must either necessarily include within itself all of the essential ingredients of the lesser, or, if not necessarily included, but may or may not be involved according to the circumstances of the particular case, the indictment must itself, in describing the manner in which the higher offense was committed, contain all of the averments necessary to constitute the lower."

More recently in Defrancis v. Manning, 246 Ga. 307, 309, 271 S.E.2d 209 (1980), we again recognized that all of the essential elements of the crime of which the defendant is convicted must be included in the indictment, saying: " 'It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process.' Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979)."

The law puts a defendant on notice that he "may be convicted of a crime included in a crime charged in the indictment or accusation" and it defines included crimes. OCGA § 16-1-6 (Code Ann. § 26-505). From the foregoing, we conclude the following: Due process of...