Moore v. State, 23760
| Decision Date | 04 November 1966 |
| Docket Number | No. 23760,23760 |
| Citation | 222 Ga. 748,152 S.E.2d 570 |
| Parties | Robert Felton MOORE v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The general grounds of the motion for new trial are without merit, as the evidence strongly supports and was fully sufficient to sustain the verdict of the jury.
2. The confession of the defendant was properly admitted, as the evidence was sufficient to support the conclusion that it was freely and voluntarily made and not induced by another by the slightest fear of punishment or the remotest hope of reward; and, further, it was made after the defendant was advised of his constitutional rights to have a lawyer, to remain silent if he so desired, that he did not have to make a statement, and that any statement made by him could be used against him.
3. A pistol found in the defendant's car immediately after his arrest for speeding was admissible in evidence, as evidence obtained as a result of a search following an arrest for an offense committed in the presence of the officer is admissible.
4. The confession of the defendant was broad enough to cover every essential element of the crime of murder, and it thus was not error for the court to fail to charge the difference between a confession and an incriminating statement with or without request for such a charge.
5. It was improper for the court to instruct the jury to retire and 'make an attempt to reach a speedy verdict,' but where immediately thereafter he instructed the jury to disregard that charge, and to remove it entirely from their minds, it was not reversible error as the defendant could not have been harmed thereby.
6. The argument of the solicitor general complained of, while strong, was relevant and pertinent to the question of whether the defendant had been beaten by the officers, and it did not inject extrinsic and prejudicial matters no evidence for which there was no basis, and furthermore, if improper there was no objection to it, no request for a ruling or instruction thereon by the court, and no motion that counsel be reprimanded or that a mistrial be granted, which is required as a basis for review.
Murray M. Silver, Brunswick, for plaintiff in error.
Jack Ballenger, Sol. Gen., Baxley, Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Executive Asst. Atty. Gen., Carter A. Setliff, Asst. Atty. Gen., Atlanta, for defendant in error.
Robert Felton Moore was indicted for the murder of Oliver Wainwright in Camden County Superior Court and was tried and convicted of murder without recommendation and sentenced to death. From the judgment of the trial court overruling his motion for new trial on the general and five special grounds he appealed to this court, and enumerated as error, denial of his motion for new trial on each of the grounds.
1. As to the general grounds, we have carefully read and considered the evidence and find that the verdict of the jury is strongly supported by the evidence. It shows without question that the defendant, while riding in the back seat of the automobile driven by Wainwright with Conner on the front seat with him, pulled a pistol on them, ordered them to stop the car, and to get out, which they did. He then marched them out in the woods, where he at pistol point ordered them to take off their clothes and give them to him, whereupon he shot and killed both of them, took their money amounting to some $130 and drove away. He was apprehended by officers within three or four hours, and later confessed the killing. When arrested he had the pistol with which he had killed the two deceased men. The appellant offered no evidence in his defense and did not make a statement in his own behalf. The evidence showed a cruel, inhumane, premeditated, unmitigated murder of two men, who were helpless to defend themselves, for the purpose of robbery.
2. Defendant enumerated as error the overruling of the special ground of his motion for new trial which complained of the admission in evidence of his alleged confession. The question of admissibility of the confession was first tried before the judge, in the absence of the jury, who found after hearing evidence, that the confession was admissible, and admitted it. The defendant in his testimony before the judge in the hearing on the admissibility of the confession, testified that he was beaten about the head by one of the officers riding with him on the back seat of the car, with officers riding in front, while on their way from Folkston, where he was arrested, to Woodbine or Kingsland, and that the officer questioned him about some men; that they made threats to him after they got him to the courthouse, and that 'Sheriff Gibson took his gun out and put it to my forehead, and told me just as soon blow my damn brains out then as not,' that he was afraid, was beaten and abused and that he would not have made the statement and confessed, if he had not been physically abused. His girl friend, who saw him on Tuesday after he was arrested on Friday night, said one of his eyes was almost closed. On cross examination she testified that he did not complain about anyone beating him at that time or on any of several visits she made to him while in jail. One of his attorneys testified that he saw defendant on March 4, after his arrest on February 25th, and that his eye was red and bloodshot and that he had marks on his wrist. The evidence as to how his eye was injured was inconclusive. Defendant did not say the officers or anyone caused it. Each of the several officers denied that he or anyone in his presence had threatened, beaten, or otherwise mistreated the defendant. Officer Lunsford of the G.B.I. testified that he talked with the accused about 2:30 a.m., February 26 after his arrest about 10 p.m. the night of the 25th, and advised him of his rights, told him he was entitled to a lawyer, that he didn't have to tell him anything and that anything he said could be used against him. He advised him of his rights on a later occasion, when he made his confession. The defendant was arrested for speeding by Corlee, a Folkston policeman. While chasing defendant, the officer radioed for help, and just after Corlee arrested him, Phillips, Deputy Sheriff of Charleton County, arrived. He took custody of the defendant, told him that he would have to hold him for speeding and also in connection with the disappearance of two men. At that time he testified that he While the evidence was conflicting, it was ample and entirely sufficient to show that the accused was advised of his constitutional rights to remain silent, have a lawyer, and that any statement he made could be used against him and that his confession was freely and voluntarily given. This court cannot say that this accused was denied the assistance of counsel, in violation of the 6th Amendment to the United States Constitution as was held in Escobedo v. State of Illinois, 378 U.S. 478, 491, 84 S.Ct. 1758, 12 L.Ed.2d 977, as here, contrary to Escobedo, the accused was told of his right to have counsel, and that he didn't have to say anything without his counsel being present. This State has long required that admissions or confessions must be freely and voluntarily made, not induced by another by the slightest fear of punishment or the remotest hope of reward. Code § 38-411; Mobley v. State, 221 Ga. 716(3), 146 S.E.2d 735. The jury was authorized by the evidence to find that the confession was freely and voluntarily made.
advised him of his rights, that he was entitled to a lawyer, and that he didn't have to make nay statement. Each officer thereafter connected with the investigation testified that the accused was advised of his rights before he was questioned or the case discussed with him.
3. Ground 3 complains of the admission in evidence of the pistol taken by the arresting officer from defendant's car at the time of his arrest, which pistol under the uncontradicted evidence was used to kill Wainwright and Conner. Officer Corlee, a Folkston Policeman, gave chase to defendant's car when it passed through his city at a high rate of speed, and continued chasing him at speeds up to 80 miles per hour and finally caught him when two of the tires came off and his car ran into a ditch. The officer testified that '* * * he stopped; I pulled up behind him leaving my car a little to the left so the headlights could be shining on his car; he opened the door and made the movement of coming out of the car in this position, the door cracked approximately 12 inches; I saw an object in his hand, and I came around to the side of the car, staying a distance from the door and advising him to drop what he had in his hands and brought his hands up slowly, and I asked him to step back to my car; I had him to place his hands on the hood of my car, and I held him there until Deputy Phillips arrived at the scene.' The solicitor general, after displaying a pistol to officer Corlee, asked him: 'All right, tell the jury when and where you first saw that gun.' Answer: 'When I went back to the Oldmobile and found this weapon laying on the ledge just inside of the door in a cocked position.'...
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