Montos v. State, 19543

• Decision Date: 05 December 1956
• Docket Number: No. 19543,19543
• Parties: Nick MONTOS v. The STATE.
• Court: Georgia Supreme Court

Page 792

95 S.E.2d 792

212 Ga. 764

Nick MONTOS v. The STATE.

No. 19543.

Supreme Court of Georgia.

Dec. 5, 1956.

Syllabus by the Court

The trial court erred in denying the defendant's motion for new trial for the reasons given in the opinion.

J. B. McGee, Jr., Clarence D. Blount, Waycross, J. Walter LeCraw, Atlanta, for plaintiff in error.

Leon A. Wilson, II, Waycross, Andrew J. Tuten, Solicitor-General, J. T. Townsend, Alma, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.

MOBLEY, Justice.

The defendant, Nick Montos, along with Dan Cullifer and Robert Mathus, was indicted for robbery by force and intimidation. Montos was convicted of the offense as charged without a recommendation to mercy. His motion for new trial as amended was denied and to this judgment he excepts.

1. As to the general grounds, the defendant in error contends that the evidence was not sufficient to sustain his conviction of robbery by force, but only made out a case of robbery by intimidation. The evidence of the victim that the defendant grabbed her, hauled her around, tried to hold her, tore her dress off her, and, after all of that, finally ripped off her brassiere, pulled the billfold from a pigskin bag pinned with a safety pin therein, she at all times resisting and trying to get away, amply establishes the element of force required by the statute. Baugh v. State, 211 Ga. 863(3), 89 S.E.2d 504; Osborne v. State, 200 Ga. 763, 38 S.E.2d 558; Long v. State, 12 Ga. 293(9); Smith v. State, 117 Ga. 320, 43 S.E. 736. Henderson v. State. 209 Ga. 72, 70 S.E.2d 713, relied upon by the plaintiff in error, is distinguishable upon its facts, as there the force was applied after the robbery, whereas here it was applied prior to and while the money was being taken from the victim. The general grounds are without merit.

2. As the case is being reversed upon other grounds, it becomes unnecessary to pass upon the exception to the refusal to grant a continuance.

3. Ground 5 complains of the failure of the court upon request to sequester quester two of the State's witnesses, T. M. Price and John Wolf. The solicitor-general contended that these witnesses were officers, and, being officers, should be permitted to remain in the courtroom. He made no contention that he needed their assistance in the conduct of the case, nor was any reason given other than that they were officers. The witnesses were employees of the Georgia Bureau of Investigation. There is nothing in the record to support the contention of the solicitor-general that these officers were needed in the courtroom to guard against an escape by the defendant, who he claims was an 'escape artist.' Under Code, § 38-1703, which provides that 'In all cases either party [examined] shall have the right to have the witnesses of the other party examined out of the hearing of each other, * * *' the sequestration of witnesses is mandatory upon a timely request by any party to the cause, and in this case the refusal of the trial court to grant such request by counsel for the defendant deprived the defendant of a substantial and positive right. 'Whatever may have been the rule at common law, and despite interpretations placed thereon in any early decision of this court, the rule fixed by the Code of 1863 § 3787, and continued in all subsequent Codes, as to the sequestration of witnesses [now Code § 38-1703], conferred upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case, and where it appears that in making the exception to the rule the fair rights of the opposite party are secured or the impairment of the efficiency of the court avoided by allowing a depute or other officials, who are witnesses, to remain in the courtroom. The mandate of the law is that in all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other * * *.' Poultryland, Inc., v. Anderson, 200 Ga. 549(2), 37 S.E.2d 785, 793. The record in this case does not bring it within any of the exceptions to the rule. We can not agree with the State that the record does not show any harm to have resulted to the defendant because of this error. Whenever a party is deprived of his rights, the presumption of the law is that he has been injured unless the contrary plainly appears. Poultryland, Inc., v. Anderson, supra, and cases there cited. Furthermore, the death penalty was imposed in this case, and it cannot be said that the jury's verdict was demanded and that this error might have been harmless. Barfield v. State, 179 Ga. 293(1), 175 S.E. 582.

4. Ground 6 assigns error upon the admission of testimony of Dr. W. W. Sharp, over objection of the defendant, to the effect that Fender Carter's mind is not as good now as it was before his injury in August, 1951, when he was struck over the head by Mathus during the commission of the robbery, and that in his opinion as a doctor the impairment of Carter's mind grew out of the injury he received on that occasion. Ground 7 complains of the admission of similar testimony from Mrs. Sanella Bland to the effect that her brother's mind was good prior to the robbery when he got hit on the head, and since then his mind has been impaired. The objection to this testimony was that it was not relevant, tended to inflame the minds of the jury, and illustrated no issue in the case. We are of the opinion that this evidence as to Fender Carter's having been struck over the head by one of the defendants during the robbery was admissible as a part of the res gestae and was illustrative of the force used in the commission of the robbery; and evidence of his mental condition at the time of the trial, at which he was present but was not used as a witness, was admissible to explain the failure of the State to use him as a witness. This ground is without merit.

5. Grounds 8 through 34 complain of the admission in evidence, over timely objection, of certain articles and testimony relating thereto, which articles were found in the automobile identified as the one used by the defendant and his two companions in the perpetration of the robbery and their escape from the scene. The articles were a crowbar, an ice pick, two flash lights, a deputy sheriff's badge, shotgun shells, cartridges, automobile tags and tag fasteners. The jury were authorized to find that the automobile had been used by ...