Orange v. State

• Decision Date: 06 May 1948
• Docket Number: 31989.
• Citation: 47 S.E.2d 756,77 Ga.App. 36
• Parties: ORANGE v. STATE.
• Court: Georgia Court of Appeals

47 S.E.2d 756

77 Ga.App. 36

ORANGE v. STATE.

No. 31989.

Court of Appeals of Georgia, Division No. 2.

May 6, 1948

Syllabus by the Court.

1. The evidence sustains the verdict on the general grounds.

2. Special grounds 1 and 2: The failure to charge in the instant case under its facts and under the whole charge, that the presumption of insanity based on an adjudication of insanity prior to the commission of the crime, does not show grounds for reversal.

3. The assignments of error under special grounds 3 and 4 show no cause for reversal.

Ted Orange, the defendant, was indicted, together with George Powell, Jr., and Rita Mae Gazaway, at the August term, 1947 of the Superior Court of Troup County, for the offense of robbery, in that the said Ted Orange, on the 9th day of June 1947, fraudulently and by force and intimidation, together with George Powell, Jr., and Rita Mae Gazaway, took from the person of J. N. Freeney, without his consent, and with the intent to steal the same, Twenty-two Dollars in paper money of the United States, one Derby man's wrist watch, metal wrist band, of the value of Fifty Dollars, and one 1942 2 door Fleetline Chevrolet of the value of Twelve Hundred Fifty Dollars, all the property of the said J. N. Freeney.

To this indictment the defendant entered his plea of not guilty and was placed on trial at the August term, 1947, of the Superior Court of Troup County. The defendant in this case was tried separately and we are here concerned with his case only. A verdict of guilty of robbery by intimidation was returned by the jury, and the defendant, in accordance with the recommendation of the jury, was sentenced to the penitentiary for a term of not less than two years and not more than five years.

The defendant filed his motion for a new trial upon the general grounds and later amended his motion for a new trial by adding four special grounds. To the judgment overruling this motion he assigns error here.

J. N. Freeney, the victim, lived in Ashland, Alabama, and was in LaGrange, Georgia, on the 9th day of June, 1947, on a business trip. Freeney, on the evening of June 9th, met a man at Grubb's restaurant, said man being identified only as the 'watermelon man.' The watermelon man introduced Freeney to Ted Orange and George Powell, Jr., stating that they were friends of his, and he asked Freeney to take Ted Orange and George Powell, Jr., and himself to town, which Freeney refused to do, as the watermelon man had a car of his own. The watermelon man asked Freeney to take all of them down to Ocie Smith's place; they wanted to stop and pick up a girl. Freeney consented, and they rode by some houses, stopped at one, and came back with a bottle of moonshine; they drove by and picked up the girl, and drove on down to Smith's place. George Powell, Jr., told Freeney where to drive. The watermelon man got out and the girl got out. The watermelon man went in Smith's restaurant. George Powell, Jr., told the girl to get back in the car, as they were going. Powell at that time had his left arm around Freeney with some kind of sharp instrument in his hand. Freeney suggested that they get out and have a beer, but was told by Powell to stay in the car. Powell told Orange and the girl to get in the car and told Freeney to start driving. They drove out to the river and took a road off to the right, first driving up in some person's yard which they all admitted was the wrong place, except Freeney, who was unfamiliar with the territory. They left and started down the road, and Powell told Freeney to stop the car. The defendant and the girl stayed in the car; Powell got out of the car. Freeney started to get out of the car, and Powell told him to keep his hand up, stating, 'I would just as soon cut your God damned throat as to take a drink of water. Keep your hands up. I will kill you in a minute. Where is your pocketbook?' Freeney started to reach for his pocketbook and Powell said: 'Keep your God damned hands up. I will kill you in a minute.' Powell reached in Freeney's pocket and pulled out the pocketbook, getting the money and the pocket book. He pulled off Freeney's wrist watch, and made Freeney pull off his shoes, and stated to him: 'You are a decedent sort of a s. o. b. or I would kill you.' The defendant did not say anything at the time. Freeney was ordered to get going. Freeney ran out in the woods 24 or 30 yards from where they had stopped. Powell and the defendant and the girl were talking, but Freeney could not understand what they were saying. When Freeney was told to run, he ran up in the woods and hid under a tree, and waited some time until Powell, the defendant Orange, and the girl left. When they left, he went back to the dirt road and headed in the opposite direction up the highway, later changing his direction and going back the way he came. Freeney went to a house and asked if they had any means of communication, and was told by the owner that he had none, but to stay off the highway. Freeney went to Mr. Moore's and asked him to use the telephone and called up the State troopers, who came out immediately and were informed by Freeney of what had taken place.

The defendant, together with Powell, were seen in the automobile on the night of June 9th. They were seen again the next day about five o'clock walking. The defendant told Bill Watson, witness for the State, that he had a car with a tire blown out, and that he had to get another tire. On the night of June 9th or 10th, the defendant was seen by E. J. Harper, witness for the State, in Atlanta, Georgia, together with Powell and Rita Mae Gazaway. The defendant, together with Powell, tried to sell a 1942 Chevrolet, the one belonging to Freeney, to E. J. Harper, the witness. Harper was asked Five Hundred Dollars for the automobile to begin with, but was later told he could have it for $200.00. He was also told that the car was a 'hot car.' The defendant was seen in Atlanta, Georgia, on the morning of June 10th, about 6 or 7 o'clock. He was with a man and a woman. He was seen in the place of Arthur Guthus, a witness for the State, where they drank one bottle of beer and bought two quarts of wine. The watch and $2 were swapped for the two quarts of wine and the beer. The defendant was seen on the morning of June 9th or 10th, about 10:00 o'clock, in Atlanta, by A. S. Shune, a witness for the State. Shune, a mechanic, put a fuel pump on the 1942 Chevrolet, took out a radio for the work, and gave $2.50 to either Powell or the defendant. (On cross-examination, witness testified that Powell came in and paid him for the job).

Three witnesses, G. G. Keeble, R. B. Carter, and C. V. Hillyer, testifying for the State, testified that they knew the defendant and had known him for several years, and during the past had had an opportunity to observe his mental condition; that, in their opinion, he knew the difference between right and wrong, and that he was sane. All the witnesses testified that they talked to him, or had seen him, before the 14th of February, and after the 14th of February, 1947.

The defendant made no statement to the jury, but introduced in evidence a certified copy of an order of the Court of Ordinary of Troup County, dated August 5, 1947, showing that he was adjudged insane on the 14th day of February, 1947. The record does not reveal clearly just when nor why the defendant Orange left Milledgeville, but it was sometime prior to the alleged offense.

Raymond W. Martin, of LaGrange, for plaintiff in error.

L. M. Wyatt, Sol. Gen., of LaGrange, for defendant in error.

GARDNER Judge.

1. So far as the general grounds are concerned, the evidence which we have set out at length clearly reveals it to be abundantly sufficient to sustain the verdict of conviction. Indeed, the attorney for the appellant does not argue to the contrary. It therefore follows that unless there is some meritorious contentions in one or more of the special grounds, the judgment should be affirmed. We will look into them in their order.

2. Special ground 1 assigns error because the court refused to give the following request to charge: 'I charge you that where there is evidence showing insanity prior to the commission of the crime, the presumption is that the accused continued to be insane. I further charge you that the law of no civilized country holds idiots or lunatics or insane persons liable for their acts, either civil or criminal. I further charge you that at the time the act was committed the defendant was incapable of adjudging the quality of this act and knowing whether it was right or wrong, you should acquit him.' It was held in the case of Quattlebaum v. State, 119 Ga. 433(6), 46 S.E. 677: 'One adjudged insane is responsible for a crime committed during a lucid interval. Penal Code, § 35.' See also the Code, § 26-303. In our opinion, to have charged in the language requested would have placed the burden upon the State to have established the sanity of the defendant at the time of the commission of the crime, where, as here, prior thereto he had been adjudged insane by a court of ordinary. In a more recent case, Hubbard v. State, 197 Ga. 77(2), 28 S.E.2d 115, 118, the Supreme Court held: 'Although the defense of insanity at the time of an alleged crime may be made under a general plea of not guilty (Carr v. State, 96 Ga. 284, 286, 22 S.E. 570), the burden rests on the accused, under the presumption of sanity, 'to show by a preponderance of evidence, but not beyond a reasonable doubt, that at such time he was mentally irresponsible, under the tests recognized in this state.' Rozier v. State, 185 Ga. 317, 319, 195 S.E. 172, 174, cit.; Danforth v. State, 75 Ga. 614(3), 623, 58 Am.Rep. 480; Griffin v. State, 195 Ga. 368, 375, 24 S.E.2d 399; Bowden v. State, ...