Miller v. State
| Decision Date | 08 October 1970 |
| Docket Number | No. 25959,25959 |
| Citation | 177 S.E.2d 253,226 Ga. 730 |
| Parties | William Jack MILLER v. The STATE. |
| Court | Georgia Supreme Court |
John H. Ruffin, Jr., Augusta, Thomas M. Jackson, Macon, For appellant.
George D. Lawrence, Dist. Atty., Eatonton, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, for appellee. Syllabus Opinion by the Court
This is the second appearance of this case here. See Miller v. State, 224 Ga. 627, 163 S.E.2d 730, where a new trial was granted on the issue of punishment only. This appeal is from the sentence of death entered upon such retrial. Held:
1. The appellant complains of the admission of testimony by the prosecutrix and the family physician relating to the physical health and subsequent death of the prosecutrix's mother after the alleged rape. The objection was on the ground that such testimony was prejudicial and had no probative value. The appellant contends that the purpose of eliciting such evidence was to insinuate a causal connection between such death and the crime of rape with which the appellant was charged. The evidence shows that the mother was 81 years of age and in ill health at the time she witnessed the alleged rape. She died sometime thereafter.
'The jury was entitled to have presented to it all evidence in the case in order to have a complete and intelligible picture of the crime when determining the severity of the sentence to be imposed.' Williams v. State, 226 Ga. 140(5), 173 S.E.2d 182. The fact that the eyewitness to the crime was dead explained why she did not appear and testify and was not prejudicial to the defendant. Montos v. State, 212 Ga. 764(4), 95 S.E.2d 792; Dunham v. State, 8 Ga.App. 668, 70 S.E. 111; Green v. State, 65 Ga.App. 754, 16 S.E.2d 438. There is no merit to this enumeration of error.
2. The appellant contends that the in-court identification of him by the prosecutrix should have been excluded on objection. He claims it was tained because the prosecutrix had previously identified the appellant in the sheriff's office at a 'show-up.' This contention is without merit. The appellant's guilt had been established in the first trial. The instant trial was on the issue of punishment only. Miller v. State, supra; Williams v. State, supra.
3. The appellant contends that the trial court abused its discretion in permitting the State to re-open the case after it had rested and to permit witnesses not listed to testify. There is no merit in these contentions. The trial judge has wide discretion in the handling of a case and it is not error to allow the State to re-open its case after it has rested. Eberhart v. State, 47 Ga. 598(6); Johnson v. State, 85 Ga. 561(3), 11 S.E. 844; Whitehead v. State, 126 Ga. 558(1), 55 S.E. 404; Britten v. State, 221 Ga. 97, 100(4), 143 S.E.2d 176; Mobley v. State, 221 Ga. 716(4), 146 S.E.2d 735. To invoke a ruling prohibiting the State's use of witnesses whose names were not furnished the defendant, it must appear that a demand for such names was made before arraignment. Code Ann. § 27-1403 (Ga.L.1966, pp. 430, 431); Prather v. State, 223 Ga. 721(1), 157 S.E.2d 734; Jones v. State, 224, 283(5), 161 S.E.2d 302. No such demand was made in this case.
4. Error, if any, in permitting the sheriff and clerk to testify although they had remained in the courtroom after the appellant invoked the rule of sequestration at the beginning of the trial was harmless. The testimony of the sheriff related only to the custody and retention of the victim's garments for production at the trial. The testimony of the clerk related only to the custody and retention of such garments after they had been introduced in evidence on the first trial. Turbaville v. State, 58 Ga. 545(1).
5. The appellant contends that the district attorney's summation argument was inflammatory and his motion for mistrial on this basis should have been granted. The complaint generally is that the district attorney characterizes the appellant as a brute, beast, an animal, and a mad dog who did not deserve to live. We have carefully reviewed the district attorney's argument in the light of all the evidence. We do not find that it requires the grant of a mistrial. Ozburn v. State, 87 Ga. 173, 182, 13 S.E. 247; Bailey v. State, 153 Ga. 413(2), 112 S.E. 453; Johnson v. State, 154 Ga. 529(1), 114 S.E. 713; Allen v. State, 187 Ga. 178, 181, 200 S.E. 109; Hyde v. State, 196 Ga. 475, 487, 26 S.E.2d 744; McLendon v. State, 205 Ga. 55, 63, 52 S.E.2d 294; Patterson v. State, 206 Ga. 260(3), 56 S.E.2d 501; Wynn v. State, 207 Ga. 141(3), 60 S.E.2d 767; O'Bryant v. State, 222 Ga. 326, 149 S.E.2d 654.
6. The appellant contends that the court erred in proceeding with his sentencing trial without standards and guidelines and that this denied him due process of law. This contention is without merit. Miller v. State, 224 Ga. 627, 633, 163 S.E.2d 730; Massey v. Smith, 224 Ga. 721(8), 164 S.E.2d 786; Arkwright v....
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