Oglesby v. State

Citation256 S.E.2d 371,243 Ga. 690
Decision Date30 May 1979
Docket NumberNo. 34839,34839
PartiesOGLESBY v. The STATE.
CourtGeorgia Supreme Court

Charles B. Merrill, Jr., Swainsboro, for appellant.

H. R. Thompson, Dist. Atty., Arthur K. Bolton, Atty. Gen., William B. Hill, Jr., Asst. Atty. Gen., for appellee.

NICHOLS, Chief Justice.

William Herbert "Billy" Oglesby was indicted for two counts of murder, three counts of kidnapping, and one count each of burglary, armed robbery and motor vehicle theft. The jury convicted him of the murder of Allen Dale "George" Giles, of voluntary manslaughter in the death of Lola Bell Johnson, of three counts of kidnapping, and of one count each of burglary, armed robbery and motor vehicle theft. He was given life imprisonment, six 20-year sentences and one seven-year sentence, some of these sentences to run concurrently and others to run consecutively.

Evidence was admitted authorizing the jury to find the following: Oglesby and his wife had separated after he had beaten her and her infant son. She and the baby went to live with her mother, Lola Bell Johnson. On the afternoon of the occurrence, Oglesby went to his mother-in-law's house, armed with a shotgun, for the avowed purpose of seeing the baby. Mrs. Johnson heard the dog barking and went to the porch with a .22 pistol in her hand. The evidence was in conflict as to who shot first, but when Mrs. Johnson stepped back into the house, her hand was bleeding. Oglesby came into the house shooting. Mrs. Johnson was shooting back at him. Mrs. Johnson was hit by three shotgun blasts. Oglesby was not hit by any of the .22 caliber bullets fired by Mrs. Johnson. Oglesby forced his wife to have intercourse with him then forced her to wait until her sister and brother came home from school. He then made all three wait for Allen Dale "George" Giles, who also lived there. When Giles arrived, Oglesby shot at him through a window but missed. Oglesby then ran to the back porch and shot Giles three or four times with the shotgun. Oglesby placed Giles' body in the house, took his car keys, took money and food stamps from Mrs. Johnson's pocketbook, took Mrs. Johnson's pistol, and forced his wife and the two children to ride to South Carolina with him in Giles' motor vehicle. He was apprehended in South Carolina when he attempted to sell the vehicle.

1. Oglesby first contends that the court erred in charging the law of confessions as he contends that his statement was exculpatory and tended to show justification. O'Neal v. State, 213 Ga. 232, 98 S.E.2d 376 (1957). There is no merit in the first enumeration of error. The trial court charged the law of confessions in the exact language requested by Oglesby. "(E)rror may not be enumerated upon the giving of a charge requested by defendant's counsel." Patterson v. State, 233 Ga. 724, 731, 213 S.E.2d 612, 613 (1975).

2. The second enumeration of error contends that the trial court erred in sentencing him for both voluntary manslaughter and burglary. He relies upon Code Ann. § 26-506(a)(1), arguing that since the indictment for burglary charged that he entered "without authority and with intent to commit a felony, to-wit: the murder of Lola Bell Johnson . . .," the proof of the one offense establishes the other.

A similar argument was made but rejected in Pryor v. State, 238 Ga. 698(2A), 234 S.E.2d 918 (1977).

The burglary statute prohibits specific types of entry onto the property of another without authority and with intent to commit therein a theft or felony. Code Ann. § 26-1601. Voluntary manslaughter, on the other hand, does not involve any entry, can be committed anywhere, and involves the killing of a human being. Code Ann. § 26-1102. Accordingly, neither of these offenses is included within the other within the meaning of Code Ann. § 26-506(a)(1). Thomas v. State, 237 Ga. 690, 229 S.E.2d 458 (1976); Moore v. State, 140 Ga.App. 824, 826, 232 S.E.2d 264 (1976). The second enumeration of error is without merit.

3. Oglesby makes assertions in this third enumeration of error based upon the kindred, yet distinct, principles of fatal variance between allegations and proof and inconsistency of verdicts.

There was no variance between the State's allegation that Oglesby committed burglary by entering the dwelling house of Lola Bell Johnson with intent to murder her and the State's proof in support of this allegation. Direct and circumstantial evidence was introduced by the State from which the jury would have been authorized to find the existence of each fact necessary to sustain a conviction of burglary as charged under Count One. Oglesby's contention that there was a variance between the State's allegations and proof because the jury convicted him under Count Two of manslaughter in the death of Lola Bell Johnson, rather than of her murder as alleged in Count Two, misses the point that the fatal variance doctrine merely is concerned with proof introduced in support of allegations and is not concerned with the findings the jury may make after having heard the evidence. DePalma v. State, 225 Ga. 465(3), 169 S.E.2d 801 (1969). Furthermore, a variance is not "fatal" if the defendant has been definitely informed by the indictment as to the charges against him so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial, and so that he may be protected against another prosecution for the same offense. DePalma v. State, supra; Seabolt v. State, 234 Ga. 356, 216 S.E.2d 110 (1975); Dobbs v. State, 235 Ga. 800(3), 221 S.E.2d 576 (1976); Byers v. State, 236 Ga. 599(1), 225 S.E.2d 26 (1976); Hamby v. State, 237 Ga. 373, 228 S.E.2d 787 (1976); Peek v. State, 239 Ga. 422, 426(3), 238 S.E.2d 12 (1977); and Walker v. State, 146 Ga.App. 237, 246 S.E.2d 206 (1978). Oglesby was not subjected to either of those dangers.

He next asserts that the verdicts under Counts One and Two are inconsistent or repugnant in that his conviction under Count Two for manslaughter is an implied acquittal of the murder charge under Count Two which, in turn, "conclusively negates the manner in which the burglary alleged in count one was committed." Count One alleged that he had committed burglary by entering the dwelling house of Lola Bell Johnson with intent to murder her. The test for repugnancy or inconsistency of verdicts has been stated thus: "The determinative factor in such cases is whether the acquittal of one charge Necessarily includes a finding against a fact that is essential to conviction of the other charge. If so, the evidence is then insufficient to support the verdict of guilty in the convicted charge." (Emphasis supplied). Conroy v. State, 231 Ga. 472, 475, 202 S.E.2d 398, 401 (1973); Woods v. State, 240 Ga. 265, 269(b), 239 S.E.2d 786 (1977); Evans v. State, 138 Ga.App. 620, 621(1), 227 S.E.2d 448 (1976).

This court disagrees with Oglesby's contentions that the jury necessarily found that he entered the dwelling of Lola Bell Johnson without the malice necessary for a conviction for malice murder. The jury just as well could have decided to exercise its inherent pardoning power by reducing the offense from murder to voluntary manslaughter. There is no merit in the third enumeration of error.

4. The fourth enumeration of error complains that only part,...

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