Sisk v. State
| Decision Date | 12 May 1936 |
| Docket Number | 11112. |
| Citation | 185 S.E. 777,182 Ga. 448 |
| Parties | SISK v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. On the trial of the defendant for the offense of murder, the evidence relating to other crimes tended to show a general scheme or conspiracy on the part of the defendant and another or others to commit robberies, including in its scope the robbery in which the killing occurred, and was therefore admissible over the objection that it was irrelevant and prejudicial.
2. The fact that, after the introduction of such evidence, the defendant made a statement to the jury, in which he admitted that he participated in the robbery in which the deceased was killed, did not afford any ground for withdrawing and excluding the evidence.
3. Evidence of a previous robbery in which shooting occurred was admissible for the purpose of rebutting a part of the defendant's statement to the jury.
4. The evidence was sufficient to make a prima facie case for the introduction of statements made by the deceased, as dying declarations.
5. It was not erroneous to admit in evidence a certified copy of an application for an automobile license tag and of a record that a tag bearing a stated number was issued upon such application, over objection that the number was not identified and that the evidence was irrelevant.
6. The evidence which the defendant sought to elicit on cross-examination, but which the court excluded, would have been hearsay, and the state's objection thereto was properly sustained.
7. The court did not err in refusing to declare a mistrial or in failing to give cautionary instructions to the jury because of alleged improper questions by the solicitor general.
8. The court did not err in refusing a new trial.
Error from Superior Court, Fulton County; G. H. Howard, Judge.
William Sisk, alias W. C. Shaw, was convicted of murder, and he brings error.
Affirmed.
Harwell & Barrett, of Atlanta, for plaintiff in error.
John A Boykin, Sol. Gen., J. Walter LeCraw, and John H. Hudson, all of Atlanta,
p>Page M. J. Yeomans, Atty. Gen., B. D. Murphy, Asst Atty. Gen., and E. J. Clower, of Atlanta, for the State.
S. W Sisk was convicted of the offense of murder without a recommendation, and was sentenced to be electrocuted. He filed a motion for a new trial, which was later amended by the addition of fourteen special grounds. The motion was overruled, and he excepted. There is no contention that the evidence did not support the verdict; and the only questions for decision are those raised by the special grounds of the motion for a new trial. Sisk was jointly indicted with Marvin Honea and Sam Daniel. The indictment charged that the defendants did kill and murder one David Lord on December 20 1934, by shooting him with a pistol. The evidence showed the following: The killing occurred about the hour of 7 o'clock on that date, at a filling station operated by a man named Rakestraw. The defendants went to this station in an automobile for the purpose of robbing Rakestraw. Daniel remained in the car while Sisk and Honea went into the filling station office armed and committed the robbery as intended. During its commission Honea shot and killed David Lord. The deceased was not connected with the business of the filling station, but had merely stopped there to wait for another person with whom he would go to his work. He was shot because, having his hands in his pockets, he could not raise them quickly when ordered to do so. He was shot in the abdomen, and died in a hospital about four days later.
1. Special grounds 1, 2, and 3 of the motion for a new trial complained of the admission of testimony of three witnesses respectively, to the effect that this defendant and the same Honea held up and robbed a filling station operator about four and a half miles "this side" of Winder, Ga., on the night of December 13, 1934. Ground 4 assigned error upon the admission of the testimony of a merchant, to the effect that the same two, Sisk and Honea, with another person whom he did not identify, robbed the witness in his place of business on Mangum street in Atlanta on December 14 or 15, 1934. Ground 5 assigned error upon the admission of the testimony of a police officer that the merchant just referred to later came to the jail or prison house and identified Sisk and Honea as two of the persons who had robbed him, and that Sisk "kidded him" because they got more money than the merchant thought he had lost. The testimony set out in these five grounds was objected to in each instance, upon the ground that it related to separate and independent crimes, and was irrelevant and prejudicial. There is no merit in any of these assignments of error. David Lord was killed in the commission of a robbery on December 20. The evidence showed that Sisk and Honea were the actual perpetrators of that crime. The evidence objected to showed that these two individuals committed two previous robberies within a period of about a week. It tended to establish that they had engaged in a series of robberies within a short period, and that all were perpetrated in pursuance of a conspiracy on the part of the defendant and his companion or companions to commit robberies, including in its scope the particular robbery in which the deceased was killed, and corroborated the other evidence of the defendant's participation in such robbery. As against the objections presented, all of the testimony was admissible under an exception to the general rule as to excluding evidence of other crimes or transactions. Morris v. State, 177 Ga. 106 (4), 169 S.E. 495; White v. State, 177 Ga. 115 (3), 169 S.E. 499.
In ground 6 it was complained that the court erred in admitting the testimony of a different witness, to the effect that he was robbed near his apartment on Juniper street in the city of Atlanta at 12:30 a. m. on December 20, 1934. This robbery was committed by two persons who accosted the witness and caused him to get into an automobile with them. They carried him several blocks, and, after robbing him, returned and put him out a short distance from his home. The witness identified the defendant Sisk as being one of those who committed this offense, but testified that he would not recognize the other man if he saw him. The evidence concerning this robbery was objected to on grounds similar to those referred to above. The court did not err in admitting the evidence. This robbery was committed only a few hours before that in which David Lord was killed. While the witness testified that he could identify only the defendant Sisk, there was other evidence sufficient to authorize the inference that, if Honea was not in fact "the other man," he was concerned as an accomplice in this offense. The evidence was therefore admissible under the principle just applied to grounds 1 to 5, inclusive. But, even if the defendant was not aided by any person shown to have been connected with him in the other robberies, the evidence was still admissible as showing the defendant to have been engaged in a series of crimes of like nature within a short period, all inspired by a common intent, and thus to establish motive and to identify the defendant as one of the persons engaged in the conspiracy to commit the robbery which resulted in the killing of David Lord. Fairfield v. State, 155 Ga. 660 (3), 118 S.E. 395. Green v. State, 172 Ga. 635 (3), 158 S.E. 285; Wilson v. State, 173 Ga. 275 (2), 160 S.E. 319.
2. The evidence referred to in grounds 1 to 6, inclusive, was introduced before the defendant made his statement to the jury. In that statement he admitted that he was present and actively participated in the robbery in which David Lord was killed. After the defendant had thus admitted his connection with the crime, his attorney moved to exclude the evidence as to other robberies, upon the ground that, since the defendant had admitted his identity in the transaction in question, and his presence "with Honea when this robbery occurred and Lord was killed," the evidence as to other crimes "now illustrates no issue" and "could only stay in the case to the disadvantage and prejudice of the defendant." The court overruled the motion to exclude the evidence, and this ruling was assigned as error in ground 8. There is no merit in this ground. "Where a defendant is on trial for murder, proper evidence as to the circumstances of the killing is not rendered inadmissible by an admission of the defendant in open court that he killed the deceased in the county of the jurisdiction." Currie v. State, 159 Ga. 775, 126 S.E. 835. See, also, Berry v. State, 51 Ga.App. 442, 180 S.E. 635.
3. In ground 7 the defendant complained of the admission of the testimony of a filling station operator, to the effect that he was robbed at his place of business in or near Jonesboro Ga., early in September, about three and a half months before the commission of the murder with which the defendant was charged. The witness testified that the defendant Sisk was one of those who committed this robbery, but that he would not know the other participant. The witness further testified that, as the parties who committed this robbery drove away, he shot at them, and that "they shot back." Regardless of the considerations applied to the evidence complained of in grounds 1 to 6, inclusive, as hereinbefore dealt with, the evidence set out in ground 7 was not inadmissible, as contended, on the ground that it related to a separate and independent transaction and was irrelevant and prejudicial. The defendant in his statement to the jury, after admitting that he was present and took part in the robbery in which the shooting of Lord occurred, stated: ...
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