Thornton v. State, s. 25808

• Decision Date: 05 November 1970
• Docket Number: Nos. 25808,26047,s. 25808
• Citation: 226 Ga. 837,178 S.E.2d 193
• Parties: Gary THORNTON v. The STATE. LeRoy STYNCHCOMBE, Sheriff v. Gary THORNTON.
• Court: Georgia Supreme Court

Page 193

178 S.E.2d 193

226 Ga. 837

Gary THORNTON v. The STATE.

LeRoy STYNCHCOMBE, Sheriff v. Gary THORNTON.

Nos. 25808, 26047.

Supreme Court of Georgia.

Nov. 5, 1970.

Syllabus Opinion by the Court

PER CURIAM.

Gary Thornton appealed his conviction of the offense of armed robbery and life imprisonment sentence (Case no. 25808). While this appeal was pending, he filed a petition for habeas corpus, from the grant of which the appellant sheriff appeals (Case no. 26047).

1. The evidence amply authorized the verdict of guilty of the offense of armed robbery.

2. The charge of the court enumerated as the first error is: 'Should you convict the defendant of the offense of armed robbery that is, robbery by the use of an offensive weapon, it would become necessary for you to render your verdict in accordance with the form I am about to give. One form would be: 'We, the Jury, find the defendant guilty of armed robbery.' That verdict would mean that the court would sentence this defendant to life imprisonment.' This charge in and of itself would have been harmful error but it was not error or harmful in view of the circumstances that the death penalty was eliminated as a punishment and that the court, immediately after the above enumerated charge, charged the jury: 'Should you convict the defendant of the offense of armed robbery, that is, robbery by the use of an offensive weapon, it would become necessary for you to render your verdict in accordance with the form I am about to give. One form would be: 'We, the Jury, find the defendant guilty of armed robbery.' That verdict would mean the court would sentence this defendant to life imprisonment.' The court further charged the jury: 'I charge you further that should you find the defendant guilty of armed robbery, that is, robbery by the use of an offensive weapon, you may in your discretion fix his punishment by imprisonment in the penitentiary for not less than one nor more than twenty years. In the event you find the defendant guilty of armed robbery and wish to fix the punishment at not less than one nor more than twenty years, the form of your verdict would be: 'We, the Jury, find the defendant guilty of armed robbery and fix his punishment at blank number of years, filling in the number of years you determine to be proper. It shall not be less than one and not greater than twenty, and it may be any term of service between those two figures. " Under these circumstances the charge was not harmful error.

3. The other enumeration of error complains of the italicized portion of the following charge: 'The defendant sets up as a defense in this case what the law terms an alibi. He claims he was not present but was elsewhere when the alleged offense was committed, if any offense was committed. Alibi is a defense involving the impossibility of the defendant's presence at the scene of the alleged offense at the time of the alleged commission and the range of evidence or showing in respect to time and place must be sufficiently strong to exclude the possibility of his presence. The burden is on the accused to establish his alibi not beyond a reasonable doubt but to the reasonable satisfaction that the defendant was elsewhere when the alleged crime was committed, if one was committed, it would be your duty to acquit the defendant. I further charge you, if the showing as to alibi has not been sufficient to show, to your reasonable satisfaction, that the defendant was elsewhere at the time of the alleged commission of the alleged offense, and any showing whatever of alibi is to be considered by you on the general case along with the rest of the testimony and the defendant's statement, and if a reasonable doubt be raised by the evidence as a whole including the showing as to alibi, the doubt should be given and must be given in favor of innocence and the defendant acqu...