Roach v. State
| Decision Date | 02 February 1966 |
| Docket Number | No. 23311,23311 |
| Citation | 147 S.E.2d 299,221 Ga. 783 |
| Parties | Freddie ROACH v. The STATE. |
| Court | Georgia Supreme Court |
Pittman & Kinney, Charles L. Pickell, John T. Avrett, Dalton, for appellant.
Robert Vinning, Jr., Sol. Gen., Dalton, Arthur K. Bolton, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion By the Court
Freddie Roach was convicted for rape in Whitfield County on May 18, 1965, and sentenced to be electroucuted. The indictment against him was drawn under this State's second offense statute (Code § 27-2511) which provides: 'If any person who has been convicted of an offense and sentenced to confinement and labor in the penitentiary shall afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted.' In this case the indictment charged the defendant with having committed the offense of rape on September 8, 1964, on a named female and it also alleges that he had twice before been convicted for assaults with intent to rape in Whitfield County and sentenced in those cases to confinement and labor in the penitentiary for stated periods of time. From his conviction of May 18, 1965, he moved for a new trial on the usual general grounds and amended his motion by adding other grounds. He was denied a new trial and he timely filed an appeal to this court. Held:
1. Prior to trial, court appointed counsel for the accused filed a petition in the Superior Court of Whitfield County in which they prayed for an order requiring the sheriff of that county to transfer the accused to the Milledgeville State Hospital for an examination of his mental condition on the date he allegedly raped Mrs. Hyatt and subsequent thereto and that the superintendent of such hospital be required to furnish the solicitor general with a report in duplicate as to the mental condition of the accused. Judge Pope refused to grant the requested order and on January 20, 1965, the Court of Appeals affirmed his order. Roach v. State, 111 Ga.App. 114, 140 S.E.2d 919. Certiorari was subsequently denied by this court. They later amended the petition for a mental examination of the accused and prayed for an order directing that he be examined by a competent psychiatrist and that such psychiatrist be required to render and furnish an opinion as to his mental condition. The judge refused to grant such order and error is enumerated on this ruling. There is no statute of force in this State which requires the judge on application therefor to have one accused of crime mentally examined but assuming he has power to do so when such an examination is needed to comply with constitutional principles, we do not think the defendant in this case is entitled to a new trial because of the refusal of the judge to grant the order applied for. The defendant filed no special plea of insanity, no question respecting his mental condition was raised by any evidence introduced on the trial or by the defendant's statement, and the charge against him was defended solely on the ground of alibi and mistaken identity as to him.
2. On the call of this case for trial the judge complied with Code § 59-801 and put 48 competent jurors on the defendant. All of these in response to the statutory voir dire questions (Code § 59-806) gave answers showing their qualification to serve as jurors on the trial of this case. The defendant attacked the qualification of two of them (John R. Proffitt and Silas Morgan) on the ground that they had formed and expressed an opinion as to the guilt or innocence of the accused. Whereupon the judge conducted a hearing respecting the qualification of these two jurors and the evidence introduced on each hearing shows that neither had formed and expressed any opinion as to the guilt or innocence of the accused from hsving seen the crime committed or having heard any of the testimony delivered on oath. On the contrary, it showed thay any opinion they, or either of them, had formed and expressed was based on what he had heard about the case and from newspaper accounts of the alleged rape. While these jurors admitted that they had formed an expressed an opinion about the case, each testified that his opinion was not so fixed and definite that it could not be changed on the trial of the case. To disqualify one from being a juror in a criminal case on the ground that he has formed and expressed an opinion as to the guilt or innocence of the prisoner, it must be an opinion which he has formed and expressed either from having seen the crime committed or having heard the testimony delivered on oath. Code § 59-806, subd. 1; Wilburn v. State, 141 Ga. 510, 511, 81 S.E. 444; Morgan v. State, 211 Ga. 172, 84 S.E.2d 365. The court did not err, as contended, in holding that these two jurors were qualified to serve.
3. On his voir dire, Herbert A. Jones, a prospective juror, stated that he was not opposed to capital punishment in rape cases. Counsel for the accused in conducting his individual examination of this juror asked him if he would in determining the guilt or innocence of the accused for the offense charged in the indictment, namely, rape, consider his convictions for the prior offenses alleged in the indictment. He answered: 'Absolutely not.' Counsel for the accused then asked the juror: 'Would that evidence be considered by you in determining the kind or amount of punishment, if you otherwise felt that the defendant was guilty for this alleged offense?' The solicitor general interposed the following objection: When this objection was interposed, the court said: No attack is made on the charge which the court subsequently gave concerning rape and the punishment which the jury should inflict for that crime in second offense cases. We do not think the court erred in sustaining the objection which the solicitor general interposed to the question propounded. Where there is a conviction under the second offense statute, the law requires the jury to apply the provisions of that statute in assessing punishment. When this question was propunded, counsel for the accused not only knew that the jury would be required to consider prior convictions in assessing punishment if they convicted the accused, but under such statute, they would be required to do so.
4. During the individual examination of John R. Proffitt, Jr., a prospective juror who had qualified for service on his voir dire examination, counsel for the accused was not permitted to ask him if he would, because of his acquaintance with and friendship for Donald McArthur-a former sheriff of Whitfield County, give more credit to his testimony than he would to that of other witnesses. The refusal to permit his question is enumerated as error. When this question was propounded, the judge stated that he would charge the jury on the subject of credibility of the witnesses. Code Ann. § 59-705, which provides for an individual examination of each juror in a criminal case after the voir dire questions have been asked in enumerating the subjects upon which each juror may be examined provides: 'Counsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the cause, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning or bias, which the juror might have respecting the...
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