Shepherd v. State
| Decision Date | 08 April 1975 |
| Docket Number | No. 29529,29529 |
| Parties | Earnest Lee SHEPHERD v. The STATE. |
| Court | Georgia Supreme Court |
John Thomas Chason, Atlanta, for appellant.
Arthur K. Bolton, Atty. Gen., Lois F. Oakley, Lewis R. Slaton, Dist. Atty., Carole E. Wall, Asst. Dist. Atty., Atlanta, for appellee.
Syllabus Opinion by the Court
Appellant and a co-defendant were indicted by the Fulton County Grand Jury in two counts for the armed robbery on April 4, 1974, of a savings bank, one count of kidnapping and two misdemeanor pistol charges. Appellant was tried by a jury on July 9, 1974, was found guilty and received sentences of 17 years imprisonment on Counts 1 and 3, 16 years on Count 2 and twelve months each on the misdemeanors, all to run concurrently.
1. Appellant contends that the trial court erred in allowing hearsay evidence regarding the appellant's buying an automobile and in allowing the state to introduce a bill of sale of this automobile without laying the proper foundation.
The appellant's purchase of this automobile was first mentioned in the opening statement when the district attorney stated that the state would prove that four days after the robbery appellant paid over $1,200 cash for an automobile. Appellant's attorney's objection to this statement was overruled. No motion for mistrial was made at that time.
During the trial the district attorney asked an Atlanta Police Department detective what the detective did in trying to further his investigation after he learned the appellant's name. This witness replied, 'Well, sir, we also learned that he had bought a vehicle.' Defense counsel objected to this answer and moved for a mistrial. The trial court refused to grant a mistrial but sustained the objection, warned the witness not to volunteer additional information, and instructed the jury
When the district attorney again asked the detective what he did after he learned the appellant's name, the witness replied that he went to a used car lot and obtained a bill of sale for a 1968 Cadillac. The bill of sale was identified by the witness and introduced as state's Exhibit 5 over appellant's objection that the proper foundation had not been laid. The witness then testified that he placed a lookout for this car and later that same day located both the car and the appellant, arresting the latter.
Subsequently, upon cross examination by the district attorney, the appellant identified state's Exhibit 5 as the bill of sale for the automobile purchased by him on Monday, April 8, 1974, admitting that he gave an incorrect address at the time of purchase. He testified further that he was out of work but that the money used to purchase the car didn't come from a bank account but was money he had saved and kept at home. No objection was made to this cross examination. Appellant's testimony as to the events surrounding his arrest was essentially the same as the detective's.
From our review of the evidence we do not find that what transpired was so prejudicial as to require a new trial. Moore v. State, 228 Ga. 662(4), 187 S.E.2d 277, Ivy v. State, 220 Ga. 699(3), 141 S.E.2d 541.
The bill of sale identified by the detective and his testimony concerning the automobile were relevant for the purpose of explaining the detective's conduct leading up to the appellant's arrest. Code § 38-302; Estes v. State, 224 Ga. 687(1), 164 S.E.2d 108 and cits. Moreover, by failing to object to cross examination in which he admitted purchasing the car, appellant waived his right to complain that the detective was not the proper person to authenticate the bill of sale. Joyner v. State, 208 Ga. 435(2), 67 S.E.2d 221. Code § 38-1713 is not applicable to prevent waiver under the facts of this case.
This enumeration cannot be sustained.
2. The appellant was picked out of a lineup and positively identified in court by three employees of the savings and loan branch office he was accused of robbing and by the driver of a truck commandeered by the perpetrators for their get-away after the robbery. He asserts that the trial court erred in failing to give two requested charges as follows: (1) ; (2)
The trial court charged the jury as to the defendant's presumption of innocence, as to the State's burden of proof, as to the meaning of 'beyond a reasonable doubt,' and as to the credibility of witnesses. Then the court charged the jury as follows:
'Now, Ladies and Gentlemen, the defendant interposes as a defense in this case that he is the victim of mistaken identity. It is for you, the jury, to say whether under the evidence in the case, the testimony of the witnesses and the facts and circumstances sufficiently identify such defendant as the perpetrator of the crime beyond a reasonable doubt. It is not necessary that the defendant prove that another person committed the offense. It is sufficient if there are facts and circumstances in this case which would raise a reasonable doubt as to whether this defendant is in fact the person who committed the crime. 'In passing on this issue, you have the right to take into consideration all of the factors previously charged you in regard to credibility of witnesses."
Although the trial court did not charge the exact language requested, the charge given fully covered the issues of identification, mistaken identity and reasonable doubt. Therefore it was not error to fail to give the charges as requested. McClendon v. State, 231 Ga. 47(4), 199 S.E.2d 904; Young v. State, 226 Ga. 553(5), 176 S.E.2d 52.
3. Appellant's third enumeration is that the trial court erred in failing to instruct the jury, as requested, on the law of theft by taking, Code Ann. § 26-1802. That Code section provides in pertinent part that a person commits theft by taking when he unlawfully takes property of another 'regardless of the manner in which said property is taken . . .' (Emphasis supplied.) The appellant correctly asserts that the language quoted above would of necessity include armed robbery.
We do not agree, however, that every person who commits armed robbery would necessarily be entitled to request and obtain a charge as to theft by taking. The testimony of...
To continue reading
Request your trial
-
Williams v. State
...to these matters on redirect examination. Halm v. State, 125 Ga.App. 618(1), 188 S.E.2d 434 (1972); see also Shepherd v. State, 234 Ga. 75(1), 214 S.E.2d 535 (1975). Therefore, the trial court's denial of his motion for mistrial was not error. Ladson v. State, supra; Spraggins v. State, App......
-
Frazier v. State
...latter act clearly was not an offense included as a matter of fact in the charge of armed robbery of the Peppers. Shepherd v. State, 234 Ga. 75(3), 214 S.E.2d 535 (1975). 18. On May 16, 1986, the trial court granted appellant's motion for funds to retain the services of an independent psych......
-
Hill v. State
...offense) and the trial court did not submit sentencing on that count to the jury during the sentencing phase. See Shepherd v. State, 234 ga. 75(4), 214 S.E.2d 535 (1975). Enumerations 10 and 12 are without 10. In enumeration 13 the appellant alleges that the death penalty and the statute fr......
-
Williams v. State
...covered in the general charge." (punctuation omitted)).11 See Turner, 314 Ga.App. at 263–64(1), 724 S.E.2d 6.12 Shepherd v. State, 234 Ga. 75, 77(2), 214 S.E.2d 535 (1975) ; see Hightower v. State, 225 Ga. 681, 682–83(2), 171 S.E.2d 148 (1969) ; Strickland v. Mayor & Council of City of Athe......