Miller v. State

• Decision Date: 24 September 1968
• Docket Number: No. 24743,24743
• Parties: William Jack MILLER v. The STATE.
• Court: Georgia Supreme Court

Page 730

163 S.E.2d 730

224 Ga. 627

William Jack MILLER v. The STATE.

No. 24743.

Supreme Court of Georgia.

Sept. 24, 1968.

Rehearing Denied Oct. 10, 1968.

Syllabus by the Court.

1. (a) The defendant was given a commitment hearing, and he was not deprived of counsel at such hearing.

(b) The failure of the committing magistrate to cause an abstract of all the evidence presented at the commitment hearing to be made and filed with the superior court does not render the commitment or indictment void.

2. Defendant's failure to make a timely objection to the grand jury array amounted in law to a waiver of his right to do so.

3. Defendant's attack upon the validity of the indictment because it did not state the exact time of day the offense was committed is without merit.

4. Code Ann. § 26-1302 (Ga.L.1960, p. 266) is not subject to the constitutional attacks presented that it violates the Eighth and the Fourteenth Amendments to the Federal Constitution.

5. The order of the trial court denying the defendant's special plea of present insanity is supported by the evidence.

6. The trial court properly overruled the defendant's motion for new trial.

7. The defendant failed to make a prima facie case of systematic exclusion of Negroes from the 1966 jury revision list, and the motion to quash the indictment and plea in abatement were properly overruled.

8. Under Witherspoon v. State of Illinois, decided June 3, 1968, 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 but the sentence imposed on the verdict is reversed with direction that a new trial be granted to determine the sole issue of whether or not the defendant should be recommended to mercy and sentenced according to Code Ann. § 26-1302 (Ga.L.1960, p. 266).

John H. Ruffin, Jr., Augusta, Thomas M. Jackson, Macon, for appellant.

George D. Lawrence, Sol. Gen., Eatonton, Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, for appellee.

ALMAND, Presiding Justice.

William Jack Miller was arrested on June 18, 1966, under a warrant charging him with rape alleged to have been committed on June 17, 1966. Defendant was carried before a justice of the peace on June 20, 1966, at which time he was bound over to the grand jury of Jones County which subsequently returned an indictment at the October 1966 term charging the defendant with rape of a named female. The defendant filed a motion to quash the indictment on the ground of alleged systematic exclusion of Negroes from the grand jury that returned the indictment. After two hearings on the matter, this motion to quash was overruled. On November 1, 1966, the defendant filed a special plea of being presently insane and requested a sanity examination. Pursuant to an order of the trial court the defendant was taken to the Milledgeville State Hospital where he was kept for approximately three months and examined by physicians. By consent of counsel for the State and the defendant, the special plea of insanity was heard by the trial court to pass upon all issues of law and fact. After an extensive hearing the trial court on November 1, 1966, held that under the evidence the defendant was presently mentally capable of standing trial and denied defendant's special plea of insanity. On February 20, 1967, defendant filed a supplementary motion to quash the indictment which was overruled. On the same day the trial court overruled the defendant's plea in abatement challenging the legal composition of the grand and petit juries of Jones County.

On the trial the jury returned a verdict of guilty without a recommendation of mercy, and the defendant was sentenced to death. His motion for a new trial upon the general and special grounds was overruled on April 29, 1968. He appeals and enumerates 20 grounds of alleged error.

1. (a) It is contended that the indictment should have been quashed because of the failure to give the defendant a committal hearing and because he was deprived of his right to have counsel at such hearing. The evidence does not support this contention. It shows that the defendant within 24 hours after his arrest was taken before a justice of the peace where he was advised by the committing magistrate of his right to counsel. Whereupon the defendant replied that he did not want a lawyer and that 'I'm guilty, and I don't know why I done it.'

There was evidence that a hearing was had, and the order of the magistrate recites, 'after hearing the evidence in the within case I hereby bind William J. Miller to the grand jury for rape.'

(b) The failure of the committing magistrate to cause an abstract of all the evidence to be made and filed with the superior court does not render the commitment or indictment void.

'In regard to the second attack made in the present case on the judgment committing the defendant to jail, while, under the Code, §§ 27-405, 27-406, it was the absolute duty of the justice in such case to 'cause an abstract of all the evidence to be made' and return the same to the superior court, it cannot be said that the failure of the justice to comply with the duty thus imposed upon him so vitiates the hearing and commitment as to render them absolutely void. * * * His failure to comply with this requirement does not affect his jurisdiction, or strip him of his power and authority to render a judgment of commitment in such case.' Harris v. Norris, 188 Ga. 610, 612, 4 S.E.2d 840, 841.

2. In his motion to quash and abate the indictment, the defendant charged that the grand jury which indicted him was illegally constituted in that Negroes were systematically excluded in violation of the due process clauses of the State and Federal Constitutions. The record discloses that subsequent to his commitment and before his indictment, the defendant was represented by counsel of his own choice. The defendant was clearly afforded an opportunity to exercise his right to challenge the composition of the grand jury before he was indicted and his failure to do so before the return of the indictment constituted a waiver of his right to object to the grand jury array. Blevins v. State, 220 Ga. 720(3), 141 S.E.2d 426. See Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77. This ground of attack is without substance.

3. The indictment charged the defendant with committing the offense on the 17th day of June, 1966. The defendant attacked the validity of the indictment because it did not state the exact time of day the offense was committed. This enumeration of error is without merit. See Code § 27-701. Thomas v. State, 71 Ga. 44(4).

4. In his supplemental motion to quash the indictment, the defendant alleged that Code Ann. § 26-1302 (Ga.L.1960, p. 266) violates the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution because (a) the 'defendant, a Negro, who is charged with the crime of rape allegedly perpetrated upon a white woman in the State of Georgia, if convicted on this charge may be sentenced pursuant to Code Ann. § 26-1302 to death. This sentence, if imposed violates defendant's rights under the equal protection clause of the Fourteenth Amendment to the Constitution of the United States in that there exists now, and has existed for a long time past, in the State of Georgia, a discriminatory pattern, practice, custom and usage on the part of the official organs and instrumentalities of the State of Georgia including juries, whereby the death penalty for the crime of rape is consistently, systematically and discriminatorily imposed upon Negro defendants charged with raping white women while the death penalty is not imposed in this systematic fashion against other rape defendants,' (b) the jury which will try the defendant and render the verdict against him has unlimited, undirected and unreviewable discretion in the choice of sentence, (c) said statute permits the same jury which tries the issue of guilt or innocence to also fix punishment and does not provide for separate consideration of the issue of guilt or innocence, and the question of punishment to be imposed, and (d) the provisions of said statute as to imposing the death penalty on one convicted for rape constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Federal Constitution.

As to ground (a) above, there was no evidence to support the charge as set out that there exists a discriminatory pattern whereby the death penalty is consistently imposed upon Negro defendants convicted of raping white women. Further, the statute in question does not violate the due process or equal protection clauses of the Fourteenth Amendment to the Federal Constitution, nor does it violate the Eighth Amendment to the Federal Constitution. 'The statutes of this State authorizing capital punishment and providing that juries in capital cases may recommend mercy, which has the effect of reducing punishment to life imprisonment in the discretion of the jury are not vague and uncertain although they fix no standards for recommending mercy, and no violation of the Sixth and Fourteenth Amendment of the United States Constitution as far as Negroes convicted of crime has been shown. Nor does a death penalty amount to cruel and unusual punishment forbidden by the Federal Constitution. None of the alleged errors attacking the constitutionality of these statutes or their application is meritorious.' Manor v. State, 223 Ga. 594(18), 157 S.E.2d 431. See Abams v. State, 223 Ga. 216(11), 154 S.E.2d 443.

5. Enumeration of error No. 14 charges that the trial court erred in overruling the defendant's special plea of insanity.

The evidence adduced on the hearing of this plea discloses that the defendant in November of 1966 was taken to the Milledgeville State Hospital where he remained until about February of 1967 and...