Whisman v. State, 24913

• Decision Date: 21 November 1968
• Docket Number: No. 24913,24913
• Citation: 164 S.E.2d 719,224 Ga. 793
• Parties: Woodrow WHISMAN v. The STATE.
• Court: Georgia Supreme Court

Page 719

164 S.E.2d 719

224 Ga. 793

Woodrow WHISMAN v. The STATE.

No. 24913.

Supreme Court of Georgia.

Nov. 21, 1968.

Syllabus by the Court

Under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 the trial court did not err in excluding for cause those prospective jurors who unmistakably expressed the view 'that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them.'

Reuben A. Garland, Edward T. M. Garland, Atlanta, for appellant.

Earl B. Self, Solicitor Gen., Bobby Lee Cook, Summerville, Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Courtney W. Stanton, Joel C. Williams, Jr., Deputy Asst. Attys. Gen., Atlanta, for appellee.

ALMAND, Presiding Justice.

The sole question raised by this habeas corpus appeal is whether Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 is applicable to the instant case because prospective jurors were excluded 'for cause' simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction, or whether the instant case comes within the exception set forth in the Witherspoon case because the prospective jurors excluded 'for cause' made it unmistakably clear that they would automatically vote against the imposition of capital punishment without regard to the evidence or that their attitude toward the death penalty would prevent them from making an impartial decision as to a defendant's guilt.

This is the third appearance of this appellant, Woodrow Whisman, before this court seeking to set aside his conviction or his sentence of death by electrocution. See Whisman v. State, 221 Ga. 460, 145 S.E.2d 499 and Whisman v. State, 223 Ga. 124, 153 S.E.2d 548.

The appellant appeals from an order of the trial court resentencing him to be electrocuted which provided in part: 'It appearing that the mandates set out in Witherspoon v. Illinois, 391 U.S. 510 (88 S.Ct. 1770, 20 L.Ed.2d 776) (36 LW 4504), were in the trial of this case fully complied with, and in this case the imposition of the death penalty was proper under law.'

In Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, supra, the Supreme Court of the United States expressly held that no defendant can constitutionally be put to death at the hands of a jury selected 'by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' (Emphasis ours). However, the court set forth an exception to its ruling when it stated: 'If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply 'neutral' with respect to penalty.' Furthermore, in footnote 21 of the opinion the court gives additional clarification to this exception by stating 'that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.' The opening remarks of the court in the Witherspoon case clearly reveal the limited scope of the holding by saying: 'The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective juors who state that their...