Simmons v. State

• Decision Date: 05 February 1970
• Docket Number: No. 25619,25619
• Citation: 226 Ga. 110,172 S.E.2d 680
• Court: Georgia Supreme Court
• Parties: Eddie SIMMONS v. The STATE.

Page 680

172 S.E.2d 680

226 Ga. 110

Eddie SIMMONS v. The STATE.

No. 25619.

Supreme Court of Georgia.

Feb. 5, 1970.

Syllabus by the Court

1. (a) The motion to quash the indictments was properly overruled.

(b) The challenge to the array of petit jurors, on the ground of the alleged systematic exclusion of Negroes from the voters' list, is without merit.

2. The court did not err in overruling ground 13 of the challenge to the array of petit jurors or in upholding the constitutionality of Ga.L.1953, Jan.Sess., p. 256.

3. Ga.L.1967, p. 725 is not unconstitutional.

4. The striking of the Negroes and Jews on the jury panel did not alone prove systematic exclusion of minority groups, absent a showing that such procedure was customarily followed for this purpose.

5, 6, 7, 8. Enumerated errors 25, 26, 27 and 28 are without merit.

9. The evidence supported the verdict.

10. Code Ann. § 26-1005 is not unconstitutional.

11. The Georgia statutes on capital punishment are constitutional and there was no evidence of unequal punishment of Negroes in this State.

12. The disqualification of two jurors on the basis of their conscientious opposition to capital punishment, without further questioning them as required by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 was error requiring a new trial on the sole question of punishment.

Aaron Kravitch, Savannah, for appellant.

Andrew J. Ryan, Jr., Dist. Atty., Andrew J. Ryan, III, Savannah, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Dorothy T. Beasley, Deputy Asst. Atty. Gen., Atlanta, for appellee.

FELTON, Justice.

This is an appeal from the judgments on the verdicts in three cases, two involving verdicts and sentences in two cases in which the defendant was indicted in each of two indictments for shooting at another not in his own defense, cases Nos. 16693 and 16694, and the other involving an indictment for murder, case No. 16695. In each of the first two cases the defendant was convicted and sentenced to four years on each indictment. In the murder case the defendant was convicted and sentenced to death by electrocution. The appeal is also from the order overruling the motions for new trials in the three cases combined.

1. (a) The enumerated error on the overruling of the defendant's motion to quash the indictments on the ground that there had been systematic exclusin of Negroes from the grand jury, is without merit. The challenge to the array is the proper method of raising this question before the indictment is returned unless it is shown that the defendant had no knowledge of the illegality prior to the indictment. Here the motion to quash was made after the indictment was returned and there was no showing of ignorance of the illegality before the indictment was returned, and the matter of illegal selection did not appear on the face of the indictment. Heard v. State, 210 Ga. 523, 81 S.E.2d 467; Wooten v. State, 224 Ga. 106, 160 S.E.2d 403; Vanleeward v. State, 220 Ga. 135, 137 S.E.2d 452 and Abrams v. State, 223 Ga. 216(10), 154 S.E.2d 443.

(b) The challenge to the array of petit jurors is without merit for the reason that the evidence introduced and that ruled inadmissible did not make a prima facie case of systematic exclusion of Negroes from the voters' list as required by Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 and Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599. The evidence excluded was properly excluded since it did not reasonably tend to support the charge of systematic exclusion. (Enumerated errors 2 through 15. This point is also made in other enumerated errors, all of which are without merit.) On the other hand, the other evidence on this question showed a conscientious effort on behalf of the jury commissioners to select a cross-section of citizens, Ga.L.1967, p. 251 (Code Ann. § 59-106), and one of the commissioners was a Negro.

2. The court did not err in overruling ground 13 of the challenge to the array of petit jurors or in upholding the constitutionality of Ga.L.1953, Jan.Sess., p. 256. Paragraph 13 of the challenge of the array in as follows: 'That under the law, Code Section 59-710, it provides: 'When the superior court is held for longer than one week, the presiding judge shall draw separate panels of petit jurors for each week of the court.' That in order to circumvent this statute the legislature under the Acts of 1953, page 256, General and Special Session, enacted a special Act which is applicable only to Chatham and Fulton Counties, which provides that in all Superior Court Judicial Circuits jurors are competent to serve during the year not more than 20 days, etc., which would be contradictory to the provisions of the general statute. That said special Act is unconstitutional and invalid because it is in conflict with the Constitution of the State of Georgia which provides in Section 2-4401 that 'the jurisdiction, powers, proceedings and practice of all courts * * * invested with judicial powers (except City Courts) of the same grade or class * * * shall be uniform.' Said special Act is in direct conflict with said constitutional section and with the statute above stated. That the present jurors impaneled as the jury venire in said case served the previous week and said jury was not redrawn, resummoned or reimpaneled as provided by law, therefore it is illegally constituted.' Said Act of 1953 is not unconstitutional in the particular claimed because the basis of classification is population and the Act is a general law because such classification is open to let in any county which by any future census might have the stated population and no county is so excepted that it might never fall within the provisions of the law. Shadrick v. Bledsoe, 186 Ga. 345, 198 S.E. 535. Uniformity does not mean universality. Cragg v. State, 224 Ga. 196, 160 S.E.2d 817, and see Murphy v. West, 205 Ga. 116, 52 S.E.2d 600. This answers enumeration of error No. 17 in that Code § 59-710 does not apply to Chatham County, which is a county coming under the provisions of the said Act of 1953.

3. Ga.L.1967, p. 725 is not unconstitutional. Rawlins v. Georgia, 201 U.S. 638, 640, 26 S.Ct. 560, 50 L.Ed. 899. The statute involved was later amended in 1920 and 1953, prior to the amendment of 1967, but the constitutionality was not affected. Manor v. State, 223 Ga. 594, 157 S.E.2d 431. The exemption from jury duty is personal. Morris v. State, 185 Ga. 67, 194 S.E. 214.

4. Appellant complains that the jury was prejudiced because the State had struck the Negroes and Jews who were on the jury panel and that this amounted to systematic exclusion of minority groups. This enumeration is without merit since there was no showing that this procedure was customarily followed in order to exclude a certain minority group from jury service. Swain v. Alabama, 380 U.S. 202, 221, 85 S.Ct. 824, 13 L.Ed.2d 759; Sims v. State, 221 Ga. 190, 144 S.E.2d 103.

5. Since the record does not reveal the manner in which the court rebuked appellant's counsel for statements made in his closing argument and does not show per se that there was a rebuke, enumeration of error 25 is without merit.

6. Enumeration of error 26 is without merit. The court properly directed appellant's counsel to follow a ruling previously made. The court's ruling was proper because his argument was not based on facts shown by the record, but based on inferences from fact not justified by the record.

7....