Mitchell v. State

• Decision Date: 16 April 1947
• Docket Number: 15715.
• Citation: 42 S.E.2d 767,202 Ga. 247
• Parties: MITCHELL v. STATE.
• Court: Georgia Supreme Court

42 S.E.2d 767

202 Ga. 247

MITCHELL v. STATE.

No. 15715.

Supreme Court of Georgia

April 16, 1947

Rehearing Denied May 16, 1947.

The defendant and two others were jointly indicted for robbery by force and violence, and by force and intimidation; and the defendant was convicted of robbery by force and violence. The defendant, having elected to sever, was tried first. A brief summary of the facts developed by the evidence on the trial of the case is as follows: On the evening of November 20 1945, at about 6:45 p. m. Dr. O. D. King left his hospital at Bremen, Georgia, and after stopping at the post office for a few minutes, drove about one-half mile to his home, which was located on the south side of the Bankhead highway where at about the same distance off the highway on the north side the defendant Raymond Mitchell lived. Dr. King drove his car into his driveway leading to the garage under the house and to within six or eight feet of the house. The area behind the house was wired with electric lights, and it appears from the evidence that one light was burning. After turning the lights off the car, the Doctor got out and upon coming up to the front of his car a person from behind the garage door said 'All right, Doc, stick 'em up.' Dr. King glanced to his left and saw a dark-faced person with something white across his face. He was about the Doctor's height but not as heavy, and about the same size and height of a negro named Junior Hayes, and about the same size and height as the defendant (Raymond Mitchell). Dr. King immediately turned and ran for a distance of about 75 yards, 'hollering' as he ran and, when he looked back, he stumbled and fell on his face and stomach. While lying on the ground breathless, he tried to look again and the person over him said 'Don't look, don't look.' The doctor's billfold, containing around $800 in cash and personal papers, was taken from his person. A neighbor who had heard the outcry telephoned Sheriff G. L. Newman of Buchanan, Georgia, who arrived on the scene at approximately 7:15 p. m. or about thirty minutes later. Before the sheriff arrived a telephone call was made to Warden Ben Lambert at Newnan, Georgia, who arrived about forty-five minutes later with two dogs and dog boys. The evidence shows that the dogs were started where the holdup occurred and immediately picked up a track which they followed up a draw' to the Bankhead Highway and continued across a railroad embankment into a sedge filed a short distance west of the house occupied by Raymond Mitchell (defendant), at which point they circled and led to the back door of the defendant's house. It was shown that it was then between 8 and 9 o'clock, and that there were around fifteen other negroes at the house having a possum supper. The evidence of both the State and the defendant show that the defendant was taken home about 6 o'clock, and that he was in the house when the dogs trailed to the back door, and the defendant in his statement admitted that when the sheriff had asked which one of them had come in the back door, he (the defendant) had said 'It was me come in the back door.' The dogs were taken back to the scene of the crime and turned loose again. This time they circled around and went down to the branch where they struck a trail and began to bark. They followed this trail up a 'draw' that came out on the highway crossed the highway, and went over to the railroad which they followed for about 200 yards until they reached a street leading down to a spring, and from there to a patch of woods, where certain papers identified as having been in the victim's bill-fold were found the following day, and from there the dogs came out to a dirt road where the trail ended. It was shown that Dr. King was known by Hubert Clay (one of the alleged accomplices) to have been carrying a large sum of money; and that Clay had seen it when the Doctor had visited his home a few days before the robbery. Lonnie Garrett (the other alleged accomplice) testified for the State substantially as follows: 'I live below Bowden-Junction. I remember the night Dr. King was robbed. I know Raymond Mitchell (defendant). I saw him that night. I first saw him going up the road there below Bremen, this side of the Bankhead Tavern; him and Mr. Hubert (Hubert Clay being the other alleged accomplice) came by in a car and asked me did I want a ride. I got in and come on up the road and they told me they was going to rob Dr. King and told me they wanted me to go down there with them. They told me they would give me $10.00 to go down there with them. I told them I would go down there with them, but not to rob Dr. King. We went on up there in town and me and Raymond (the defendant) got out and went to the depot and stayed there a while and left there and went down the railroad and turned and went down to Dr. King's house. When he left the railroad, he turned out and went right down by the side of a ditch down there, the ditch comes out at the highway. When we went down the ditch, we went down there at Dr. King's house. When we got to Dr. King's house, I stayed there; he said he was going to get a gun. When he said that, I was back of Dr. King's house, right there at that light; there was a light there. Raymond said he was going to get a gun and left and went around back of the other house; I mean he went back of Dr. King's house; he was going towards the highway. The last place I know of Raymond staying, he was staying up there the other side of the City Lumber Co. When he left to get the gun, it wasn't long before he come back. I did not see a gun, I don't whether he got a gun or not. I don't know where he went, and he did not say anything to me when he got back, and he went up there and got behind Dr. King's garage door. He did not stay there so long; I stayed right there at the light; I did not go to the house with him. I did not get any closer to the house than that electric light I am speaking about. The next thing that happened Dr. King drove up and stopped and Raymond says 'Stick 'em up, Doc.' When Raymond said that, I could not see Raymond or Dr. King, neither one; Dr. King hollered, and run and I broke and run. When I run I turned right off down the hill. That was not the way we come in there. I went across the ditch and came out right back this side of Mr. Thompson's house, and the next time I saw Raymond he was up there on the railroad. I went out the hollow and up across the pasture and got in the highway and went on across on the railroad. When I got to the railroad I saw Raymond Mitchell; he said he got the money. We went up there and turned and went down to the spring. We were on the railroad and turned off to go down to the spring. The spring was on the left-hand side of the road, and at the bottom of the hill. We turned off to the left. Hubert Clay was out there at the spring and he asked Raymond, did he get the money. Raymond said, 'Yes', and Raymond pulled out and give me $10.00, and he told me not to say anything about it. I saw the money they got from Dr. King, I don't know how much it was. I didn't get hold of the pocketbook it was in. I did not see them divide it and I don't know what part each one got of it. The next thing was done, Mr. Hubert Clay told me not to say anything about it; if I did he would kill me; he said that after I got the $10 bill. We left there and went on up there near the school building on top of the hill. We didn't go the road; we walked across the field and come out up there this side of the railroad in a dirt street. We cross the railroad and the car was parked there, and we got in the car, and they carried me to the overhead bridge beyond Bowden-Junction, and I got out and went home. The car was parked on a road on the right-hand side headed towards the hospital. Hubert Clay drove the car.' On cross-examination, this witness testified: 'I first saw Raymond Mitchell and Hubert Clay the day Dr. King was robbed a little while before sundown, something around 4 or 5 o'clock. I got in the car down there this side of the Bankhead Tavern and come to town, and me and Raymond got out and went down to the depot. I did not go anywhere else. We did not stay at the depot, I guess about ten or fifteen minutes. It wasn't dark when we left the depot, not good dark. We left there and went down the railroad and went down to Dr. King's house, and it wasn't dark when we got to Dr. King's house. At that time I worked for Mr. Norcross. Dogged if I know what time it was when I got off from my work on the 20th day of November, the day Dr. King was robbed. Mr. Norcross run a little dany, and when I work for him I usually get off from work sometimes a little after dark. I worked for him the day Dr. King was robbed, and I guess I got off from work about dark. That night when I got off from work, I went home; my home is at my sister's. Her name is Bertha Thomas. It was after dark when I got to Bertha Thomas'. I did not go anywhere else. I didn't go to Bremen that afternoon. I didn't see Raymond Mitchell or Hubert Clay that evening. I first had information that we was accused of robbing Dr. King on Monday morning after the second Sunday in this month about two weeks ago. [January 14th, 1946]. When I come to knowing anything about it, I was in the high sheriff's car going towards Atlanta.' The witness testified further on cross-examination that he had been told by a police officer how the robbery was committed, and that all his acts and statements were based on what this officer had told him he had better say, and that he was afraid of this officer. The...