Randall v. State

• Decision Date: 30 November 1945
• Docket Number: 30918.
• Citation: 36 S.E.2d 450,73 Ga.App. 354
• Parties: RANDALL v. STATE.
• Court: Georgia Court of Appeals

36 S.E.2d 450

73 Ga.App. 354

RANDALL v. STATE.

No. 30918.

Court of Appeals of Georgia, Division No. 1.

November 30, 1945

Rehearing Denied Dec. 19, 1945. [Copyrighted Material Omitted]

Syllabus by the Court.

1. The State's evidence contained those elements which authorized the jury to say that the presumption of innocence had been overcome, and the jury were not required to accept the defendant's evidence of alibi in preference to the evidence of the State.

2. Where the person who committed the crime was wearing a cap with its bill pulled down covering most of his forehead, but not his eyebrows or eyes, and who had a napkin over that part of his face below his eyebrows and eyes, with a hole in it for his nose, and the witnesses who were present at the time and place of the robbery were unable to positively identify him, their opinions and best judgment as to his identification were relevant.

3. It was not error to allow such witnesses to give their opinion that the defendant was the robber, where they have fully stated the facts upon which their opinion is based.

4. The facts detailed were sufficient, as a basis for the opinions of such witnesses, to infer that the defendant was the person who committed the robbery.

5. But the jury were not bound by such opinions and could disregard them. The jury may deal with such opinion testimony as they see fit, giving credence to it or not.

6. Under such circumstances, upon the question of identity 'the facts detailed are not necessarily confined to a description of the appearance of the accused, but may cover isolated and apparently trivial circumstances that are in themselves inconclusive but which, when taken with other evidence, may be sufficient to establish the identity beyond a reasonable doubt.'

7. The evidence authorized a charge on the law of conspiracy.

8. The allowance of the evidence objected to was not reversible error for any of the grounds urged.

9. The refusal to allow evidence tendered was not reversible error for any of the reasons assigned.

10. 'A pardon is an act of mercy flowing from the fountain of bounty and grace; its effect, when it is a full pardon, is to obliterate every stain which the law attached to the offender, to place him where he stood before he committed the pardoned offense, and to free him from the penalties and forfeitures to which the law had subjected his person and property:--'to acquit him,' says Sir William Blackstone, 'of all corporal penalties and forfeitures annexed to the offense for which he obtained the pardon.''

11. A pardon is partial 'where it remits only a portion of the punishment or absolves from only a portion of the legal consequences of the crime.'

12. A pardon is conditional where it does not become operative until the grantee has performed some specified act or where it becomes void when some specified event transpires.

13. The pardon which contains the following: 'In view of the foregoing facts, it is ordered: That said J. O. Randall be granted conditional pardon upon the condition that applicant not violate the laws of this or any State, or the federal government. Should J. O. Randall violate the terms of this conditional pardon, same shall be revocable at the pleasure of the Governor,' is a conditional pardon, and when the defendant again violated the law, a verdict of guilty in the present case was a judicial determination of an event which made the conditional pardon inoperative or void.

14. After conviction for a felony, as in the instant case, in fixing the punishment in consequence of such present conviction, the provisions of section 27-2511 of the Code, known as second felony offense state, which provides for the longest period of time and labor prescribed for the punishment of the present offense, were applicable.

15. The evidence authorized the verdict.

The defendant, Joel O. Randall, alias Jake O. Randall, was tried for a robbery alleged to have been committed in Fulton County, Georgia, on May 14, 1944. He was convicted, his motion for a new trial was overruled, and he excepted.

The evidence unquestionably authorized a finding that the Atlanta Enterprises, Inc. (Paramount Theatre), had been robbed of $1931.76 on the day in question. The pressure in the case is as to whether the evidence was sufficient to identify the defendant as the person who committed such robbery. The evidence was substantially as follows: Mrs. Grace Jennings testified that on May 14, 1944, she was employed by Cox prescription shop, which is in the same building as the Paramount Theatre, being there employed as cashier and cigar sales lady. The doors from Peachtree Street to the shop are glass center doors, and a person standing facing at her counter could see through these doors into Peachtree Street. On the night of May 14, 1944, around 9:30 or 9:40 P. M., a person stood at her counter for about ten minutes, 'just fooling around. * * * He kept picking up things off the counter. He would pick up something and say, 'how much is this,' and pay no attention to what I said, and all the time he was looking across the street or out through the doors, and would ask the price of different things on the counter. He stood around doing that for at least ten minutes and all the time he was watching out across the street, or watching out for some one.' He had a tan-colored envelope package. 'I saw that person's face. I see a face in this court room today that looks like him. That is the man right back there in the gray suit. I particularly studied the eye brows of that man that night. I took him in very closely. The only difference that I see in this man here and the one that I saw there that night, is that the one I saw that night had more grey in his temples than this man has. His hair cut was about the same as now. I noticed his temples at that time. He was pretty grey in his temples. I don't know what he had on his temples. This man's face is exactly the same as the man. I could not say exactly that he is the same man. He is the one whose picture I took from the file. I say that his face looks exactly like the man's that was there, only his temples are not grey like that today. I don't know who that man was that was there. They say the man sitting there is named Randall. All I can say is that he looks like the man that was there, but his temples are not as grey. His face looks exactly like the man who was there. I would not want to say that this is the man. All I can say is that he looks like the man that was in there.' 'I watched him as he walked out. He went up the street past the Paramount, and I lost sight of him. * * * I had never seen that man before that night that I recall, and I do not recall that I have seen him since, except in here, if this is the man and I can't swear that this is the one, but it looks like him. I said that his face is exactly the same.' William R. Bedell testified that on May 14, 1944, he was employed by Paramount Theatre. At the close of the day's business he went to the box office, got the day's receipts, and he and Miss Heflin and Miss Ragland, the cashiers, went to the assistant manager's office with the money. He called the usher and told him to bring the 'loge' money to the office. In about a minute the 'secret' knock to be given by persons entitled to be admitted to the office was heard and witness immediately 'cracked' the door. The door was forced open and a man entered. He was masked, having a handkerchief or doily over his face. He had a gun in his hand and ordered Bedell to shut the door quickly, stating that it was a 'stick-up,' and ordered him and the ladies to keep quiet and get over against the wall, with their backs to him, which they did. Miss Heflin kept looking at the gun and on three occasions he threatened to 'drill' her if she didn't desist from looking. The robber directed Bedell to open the safe and place the money on the desk. He (Bedell) did this and then lined up against the wall. The usher came to the door, was admitted by the robber and lined up against the wall. The robber was in the room two or three minutes. When he had taken the money he said there was a car coming down the driveway in five minutes and directed those present not to move until they heard the door slam, this being the door to the exit into the alley. The robber left, the door slammed, and the police were notified. 'That was a black revolver that the man had in his hand. This gun which you present to me looks like the one he had. I can't say positively. * * * I got a good look at the man as he came in. After that I didn't see him. He had a yellowish sun-burned complexion. His eyes were sharp and very determined. He had bushy eyebrows. I couldn't see his face. His nose was sticking through the covering on his face and was quite a sharp pointed nose. I noticed his hands particularly because I looked at the gun. They were long bony hands, hairy hands, with a yellowish tan color, sunburned. After that I saw a man that looked just like the one who entered the theater office, as I have described, in Columbus, Georgia. The eyes of the man whom I saw in Columbus were very similar to those of the robber. He had bushy eyebrows, and, as near as I could tell, the same eyes, the same color, and the same determination in them. His hands were very similar to the ones I saw on the robber. I noticed it particularly when the officers took me there. I saw that his hands were long and bony and hairy and the same color.' 'Q. 'Tell us if you observe now any change in this man on trial?' A. 'The man whom I saw in Columbus was pointed out as Randall, and he answered the description of the man who robbed the theatre. This is the same man that I saw in Columbus, but his eyebrows are not the way I saw them there, and...