Pryor v. State

• Decision Date: 27 April 1977
• Docket Number: No. 31807,31807
• Citation: 238 Ga. 698,234 S.E.2d 918
• Parties: Leonard PRYOR v. The STATE.
• Court: Georgia Supreme Court

Page 918

234 S.E.2d 918

238 Ga. 698

Leonard PRYOR v.The STATE.

No. 31807.

Supreme Court of Georgia.

April 27, 1977.

Harry Mixon, Ocilla, Floyd H. Wardlow, Jr., Ashburn, for appellant.

Walters, Davis, Ellis & Smith, W. Emory Walters, Ocilla, Thomas H. Pittman, Dist. Atty., Tifton, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Staff Asst. Atty. Gen., Atlanta, for appellee.

HALL, Justice.

Leonard Pryor was tried by a jury in the Superior Court of Irwin County and convicted of the kidnap and murder of Mrs. Grace Broome.For kidnapping with bodily injury he was sentenced to life imprisonment.On the murder conviction the jury found the aggravating circumstance that the murder was committed during the course of another capital crime, and sentenced him to death.He is before this court on appeal and for mandatory review of the death sentence imposed.

1.Summary of the Evidence

The State presented evidence including Pryor's confession tending to show the following facts:

On November 19, 1975, Pryor went to Mrs. Broome's home with a shotgun and shells and asked permission to hunt on her property.She consented.He then pointed the gun at her and forced her to enter her automobile and drive him to a field about 3 1/2 miles away.He ordered her out of the car and into the woods; when she turned around he shot her in the face.The shot knocked her unconscious and probably, though not certainly, would have caused her death.While she was lying on the ground he reloaded and shot her in the neck.He loaded a third time and shot her in the neck again.These last two shotgun blasts caused death.

On the day the victim was shot Pryor received automobile rides from several persons near the place where the victim's automobile and body were discovered two days later.Pryor's left thumb print was discovered in her car.Police obtained a search warrant to search his residence.The owner of that residence consented to a search of the house, where the police found the murder weapon and a box of shotgun shells.The wadding in the shells matched that found in the victim's brain.Pryor confessed to the murder.

At trial, Pryor neither testified nor introduced any evidence.

2.Enumerations of Error

A.Double Jeopardy

1.In his first enumeration of error, Pryor argues that the only evidence of bodily injury in connection with the kidnapping was the murder of the victim; therefore, the killing could not be both murder and the bodily injury that raises simple kidnapping to a capital felony.SeeCode Ann. § 26-1311.It follows, he continues, that the aggravating circumstance of an additional capital felony during which the murder was committed was not proved, and therefore the death penalty for murder was not authorized.

This argument raises, among others, the question whether murder is an included offense within kidnapping with bodily injury, as a matter of law or as a matter of fact.Under Georgia Code Ann. § 26-505, a crime is included in the other when "(a) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged, or (b) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission."

The State argues that Pryor's three shots at the victim culminated the aggravated kidnapping and went on to cause murder.Pryor views the three shots as an unbroken act of murder.

The general rule is that when individual acts are prohibited, each act is punished separately, no matter how close they may be in time to each other.E. g., Bins v. United States, 331 F.2d 390, 393(5th Cir.1964).See generally, Kirchheimer, The Act, The Offense and Double Jeopardy, 58 YaleL.J. 513(1949);Comment, Twice in Jeopardy, 75 YaleL.J. 262(1965).

" 'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.' "Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489(1911), quotingMorey v. Commonwealth, 108 Mass. 433.Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306(1932);McIntosh v. State, 116 Ga. 543, 42 S.E. 793(1902).

A frequently repeated test in the federal system is that "For a double jeopardy claim to be viable, it must be shown that the two offenses charged are in law and in fact the same offense."Hattaway v. United States, 399 F.2d 431, 432(5th Cir.1968);accord, Gavieres, supra, 220 U.S. at 343, 31 S.Ct. 421.

The situation in Georgia is not the same.It used to be required here that the offenses to be the same "must be identical both as a matter of fact and as a matter of law."Harris v. State, 193 Ga. 109, 117, 17 S.E.2d 573, 579(1941).However, our relatively new statute on included crimes, Code Ann. §§ 26-505and506, as we pointed out in State v. Estevez, 232 Ga. 316, 206 S.E.2d 475(1974) requires that although a defendant may be prosecuted for all crimes committed he may not be convicted of more than one crime if the crimes charged are the same in law or fact.Accord, Harvey v. State,233 Ga. 41, 209 S.E.2d 587(1974);Rowe v. State, 232 Ga. 700, 208 S.E.2d 500(1974).As the Estevez fact situation illustrated, this alternative rather than conjunctive test can mean the difference between affirming and reversing a conviction.What the statute appears to have accomplished is a broadening of the "merger" concept.At common law, a merger occurred only when the same act constituted both a felony and a misdemeanor; the misdemeanor merged into the felony.The rule had no application when both offenses were either misdemeanors or felonies.Purdom v. United States, 249 F.2d 822(10th Cir.1957).In Georgia, however, under Code Ann. § 26-506(a)(1), (using the definition of "included" from Code Ann. § 26-505) a felony may merge into another felony which requires an additional element or a more culpable mental state or a more serious injury or risk of injury to the same person, property, or public interest.This provides for broader protection to an accused than does the Federal Constitution.See generally, Keener v. State, 238 Ga. 7, 230 S.E.2d 846(1976).

Against this background, we conclude that the succession of three shots which first wounded and then killed Pryor's victim, were adequate to complete the crime of kidnapping with bodily injury, and to commit the separate crime of murder.As a matter of law, the two crimes are not the same.Kidnapping with bodily injury requires an unlawful abduction or stealing away and the holding of a person, plus the infliction of some bodily injury upon that person.The crime of murder is committed when one causes the death of another with the peculiar mental state of express or implied malice.As a matter of law, because of the different elements of the crimes, murder is not included within kidnapping with bodily injury.As a matter of fact, these shots were separate, and each constituted a renewed assault upon the victim.The first shot caused a serious wound, but the last two shots were definitely fatal and in fact ended her life.The two crimes charged here were completed one after the other, but are separate and distinct.

What we have written suffices to show that Pryor was properly convicted both of aggravated kidnapping and murder.The aggravating circumstance which the jury found in imposing a death sentence for the murder, namely, that the murder was committed while defendant was engaged in an additional capital felony (kidnapping with bodily injury), is without question adequately supported by the evidence since the kidnapping with injury stands as a separate crime.The kidnapping indictment here charged kidnapping with bodily injury, namely, shooting the victim to death with a shotgun.Our analysis which uses evidence of a less-than-fatal shotgun blast to justify convicting under this indictment is proper.SeeFlournoy v. State, 106 Ga.App. 756, 128 S.E.2d 528(1962).Naturally, the state's evidence in toto proved the shotgun murder of the victim.

We feel constrained here to address a hypothetical fact situation not now before us, namely, a situation identical to this save that a single shot kills the victim and constitutes the only bodily injury.We are concerned about that situation because significant criminal penalties ought not to hinge upon whether it requires one shot or three shots to kill a victim, once the victim's murder has been undertaken.

Without the new statute discussed above, viz.Code Ann. §§ 26-505and506, the one-shot situation would be controlled by the time-honored principle that a single act may constitute more than one crime.E. g., Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405(1958);Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, supra;Harris v. State, 193 Ga. 109, 118, 17 S.E.2d 573(1941).For example, '(i)f one uses to and of another opprobrious words and abusive language which is obscene and vulgar, and this is done in the presence of a female, both offenses are committed, though there is only one transaction." McIntosh v. State, 116 Ga. 543, 544, 42 S.E. 793, 794(1902).

The new statute, as construed in Estevez has canceled that rule of law in Georgia.It is decisive to note that the language which determined Estevez' fate was this: "In the instant case, however, the evidence required to convict of illegal sale was the only evidence showing possession.Therefore . . . the illegal possession was included in the crime of illegal sale as a matter of fact under Code Ann. § 26-505(a)."232 Ga. at 320, 206 S.E.2d at 479.That reasoning is entirely inconsistent with holding that a single shot,...