Whippler v. State

Decision Date11 July 1962
Docket NumberNo. 21644,21644
PartiesErnest WHIPPLER v. The STATE.
CourtGeorgia Supreme Court

Syllabus by the Court

1. The general grounds are without merit.

2. It was not error to admit a knife and testimony concerning it, which was identified by a witness as his own, where it corroborated the defendant's admission that he took the knife without the witness's permission and used it to slay the deceased.

3. Evidence material to the issues of the case is not inadmissible because it incidently puts the defendant's character in issue.

4. The mere fact that the defendant was interrogated over a three day period without further showing coercion, mistreatment or harassment would not be an infringement of the defendant's constitutional rights.

5. Photographs of a cigar box and the box itself are admissible where the defendant in his statement related that the box was taken from the store and where the defendant's fingerprints were on the box.

6. Where the defendant makes no objection to his fingerprints being imposed upon a card, they may be used in identifying him as the perpetrator of a particular crime.

7. Where substantially the same evidence, in the form of oral testimony, concerning certain dollar bills and money wrappers is admitted without objection, the defendant can not object to the allowance of the wrappers and the money in question, especially where substantially the same facts were admitted in the defendant's statement to the jury.

8. Where the defendant stated that on the occasion of the homicide certain keys were taken from the deceased's store and thrown by him in the place where they were found, such keys were admissible in evidence.

9. The defendant in a criminal trial may not generally object to the omission from a particular part of the court's charge when the same instructions are fully given in the charge.

10. Where there were admissions by the defendant made to other witnesses and in his written statement that he had killed the deceased, it was not error to charge the jury concerning the admission of a homicide.

11. The law presumes criminal acts to have been committed with culpable intent, and the possession of the fruits of a robbery, without satisfactory explanation, is evidence that the possessor committed the robbery.

(a) A correct charge on reasonable doubt as to the whole case and all the evidence is sufficient.

12. Where, as in the case sub judice, a ground of the motion for new trial criticizes a charge many times approved by this court, the ground shows no error.

Ernest Whipper was indicted for the murder of J. C. Chambers by cutting, stabbing and wounding him with a bayonet, knife, dirk and other sharp instrument. He entered a plea of not guilty and proceeded to trial before a jury in the Bibb Superior Court. On December 7, 1960, the jury returned a verdict of guilty without a recommendation of mercy, at which time the trial judge sentenced Whippler to death.

In due course, the defendant Whippler filed his motion for new trial upon the general grounds and subsequently amended his motion by adding fourteen special grounds. Upon a hearing on February 23, 1962, the motion was denied upon each and every ground. To this ruling, the defendant excepted and assigns error.

The evidence showed the defendant entered the store of the victim at 9:30 P. M., slew him with a bayonet and robbed him of a considerable amount of money contained in a cigar box.

The defendant made admissions to the officers that he slew the deceased and committed the robbery. In his statement he contended that he entered the store on a peaceful mission, and an argument concerning a debt he owed the deceased ensued; the deceased reached for a pistol and he killed him in self defense. The defendant also stated that Walter Williams committed the robbery after the homicide occurred. Williams testified that he was not present when the killing took place, and did not participate in the murder or robbery but learned of both from the defendant who admitted to him that he (Whippler) was the culprit.

Other facts necessary to a clear understanding of the case appear in the discussion of the special grounds of the motion for new trial.

Ellsworth Hall, III, Fred M. Hasty, Joseph H. Davis, Macon, for plaintiff in error.

Wm. M. West, Sol. Gen., Jack J. Gautier, Asst. Sol. Gen., Macon, Eugence Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.

QUILLIAN, Justice.

1. The verdict was supported by ample evidence. There is no merit in the general grounds of the motion for new trial.

2. The first special ground of the motion for new trial alleges that the court erred in permitting a witness to identify a knife as one owned by the witness, and that he did not consent to the knife being removed from his home by the defendant. The evidence was relevant and material in that it corroborated the defendant's admission that prior to the homicide he took the knife from the witness's home, without the latter's knowledge, and used it in slaying the deceased. The ground is without merit, as is special ground eight, which complains of the introduction of the knife into the evidence on the ground that it was not identified as the murder weapon.

3. The second special ground of the motion for new trial excepts to the admission of one Retha King's testimony that, on the night of July 18, 1960, two days subsequent to the homicide and the robbery of the deceased's store, the defendant related to her he had that day spent $400.00 for whiskey and that he offered her $20.00 'to go with him.' The objection was that it put the defendant's character in issue. The testimony was admissible because the defendant admitted he was without funds on the night he slew the deceased, and hence tended to show his motive in slaying the deceased was robbery. Under previous holdings of this court, evidence material to the issue of the case is not inadmissible because it incidently puts the defendant's character in issue. Tiller v. State, 196 Ga. 508(3), 26 S.E.2d 883. see also Bennefield v. State, 86 Ga.App. 285, 288, 71 S.E.2d 760. Moreover, the testimony was not hurtful to the defendant because, in the statement made to the officers, he admitted having spent part of the money taken from the deceased's store on women and whiskey.

4. The third special ground of the motion for new trial complained that an officer was permitted to testify as to a statement made to him by the defendant, in which the latter admitted slaying the deceased and robbing his store. The tenth special ground excepts to the admission into evidence of a similar written statement signed by the defendant. Both grounds allege that the statements were not freely and voluntarily given and that admitting the evidence was violative of the defendant's rights guaranteed to him under the Fifth and Fourteenth Amendments of the Constitution of the United States and Article I, Section I, Paragraph VI of the Constitution of Georgia.

The evidence shows without dispute that, during three days subsequent to his arrest, the defendant was interrogated by the officers who took his statement. The conversations, so far as the record shows, were at reasonable hours and for periods of time ranging from 45 minutes to 2 hours. On one occasion, the defendant was questioned early in the evening, at about 7:00 o'clock, for some 45 minutes. One officer testified that other officers could have questioned the defendant during the nights while the investigation was being conducted, but that he did not know that to be true. The officers were positive that the defendant was apprized of his right to refuse to make a statement and was informed that if he did make admissions they would be used against him. They also testified that the defendant was advised that he had the right to have his lawyer present and that one of the officers told him he needed counsel and suggested that he obtain the services of a lawyer. The advice was not accepted, and the defendant did not signify that he desired to have the services of an attorney. The officers testified that the defendant was not mistreated and that the statements made by him were freely and voluntarily given.

We do not think there was infringement upon any constitutional right of the defendant, and grounds three and ten show no error.

5. Special grounds four and six assign as error the admission into evidence of photographs of a certain cigar box and of the box itself, over the timely objection that the box was not shown to have been taken from the deceased's store on the night of the homicide and robbery. The defendant in his oral and written statement to the officers, and his statement made during the progress of the trial, related that the box was taken from the store on the night of the homicide; that he took the money from the same and threw it in a wooded area at the rear of his premises. There the officers found the box.

Thus, it is obvious that the box was sufficiently identified, especially in view of other testimony that the defendant's finger prints were lifted from the box.

6. The fifth special ground of the motion for new trial asserts that the trial judge erred in allowing the solicitor general, over the defendant's timely objections, to introduce the state's exhibit #11 identified as 'the ink fingerprints of the defendant Earnest Whippler, which have been identified by Mr. Ollie Goings as his, Whippler's fingerprints that he took on July 19, 1960, and have further been identified by John Walter as the fingerprints from which he made a comparison with the latent print on the cigar box referred to.'

The objection interposed was: 'The defendant objects to the admission of that in evidence on the basis that there is no showing whatsoever that same was obtained freely and voluntarily without any hope of reward of fear of punishment reprisal and that without...

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