White v. State, 28269
| Decision Date | 25 October 1973 |
| Docket Number | No. 28269,28269 |
| Citation | 231 Ga. 290,201 S.E.2d 436 |
| Parties | Arthur Lee WHITE v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The evidence was sufficient to withstand the attacks made against it.
2. Allowing a police officer to testify as to a telephone call from an informer was not error.
3. The trial court did not commit error in failing to charge, without request, as to mistaken identity.
4. It was not erroneous to permit a witness to testify as to the lineup procedure because the appellant was not then represented by an attorney.
5. Testimony of a police captain concerning his looking through police files and his having an arrest warrant was proper.
6. The charge on alibi was correct.
Nicholas E. Bakatsas, Marietta, for appellant.
Ralph W. Kearns, Marietta, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., David J. Bailey, Deputy Asst. Atty. Gen., Atlanta, for appellee.
Arthur Lee White appeals from the judgment of conviction and life sentence for armed robbery entered on February 27, 1973, in the Superior Court of Cobb County. His amended motion for new trial on seven grounds was denied on June 4, 1973. Upon this appeal he asserts eleven enumerations of error, which incorporate the grounds of the motion for new trial.
1. We deal first with the issues challenging the sufficiency of the evidence.
It is urged that the trial court erred in failing to direct a verdict for the appellant. It is insisted that the circumstances, inferences and proven facts did not exclude every other reasonable hypothesis except the guilt of the accused; that the state failed to prove the existence of any weapon except by hearsay; that the money alleged to have been taken was not recovered or properly identified; that failure to direct a verdict required appellant to prove that he was not guilty of the crime; and that this resulted in his conviction primarily on insufficient and uncorroborated evidence.
It is also urged that the court erred in denying his amended motion for new trial; that the verdict is decidedly and strongly against the weight of the evidence, contrary to the evidence and without evidence to support it, contrary to the law and the principles of justice and equity; that the court erred in allowing the case to go to the jury when there were no facts to prove him guilty beyond a reasonable doubt, thus denying him due process of law and relieving the state of any burden of proof.
The eyewitness evidence as to the robbery charged in the indictment was that of H. B. Savage. He testified, insofar as necessary to recite here, as follows: that he was working as a night clerk of a motel on the early morning of September 7, 1972; that the appellant came to the desk with a pistol held in his hand and pointed it at him; that it was a kind of blue steel, old-looking gun and he was almost sure it was a .22 calibre; that the appellant demanded that he turn over to him what money he had; that the witness replied that he would do so; that he turned over to him $51 in bills; that the appellant snapped his gun oen time; that the witness then went down to the floor to get his own pistol; that while down with his back turned, he heard a shot; and that the appellant then fled. The bullet that was fired was not located.
This witness positively identified the appellant as the perpetrator of the crime, reiterating this in cross examination. He unhesitatingly picked him out of a lineup constituted of men having similar physical characteristics.
Additional testimony was submitted by the Chief of Detective of the Marietta Police Department, including receipt of an anonymous telephone call, its follow-up and the arrest of the appellant.
The appellant sought to establish and alibi, that he was in Austell, Georgia, when the crime was committed. However, the evidence as to this was vague since it did not show that he was there upon the particular night in question.
The evidence, in our appraisal, was sufficient to withstand all of the attacks made upon it, and requires no elaboration here to establish it.
2. The sixth enumeration, in conjunction with an amended ground of the motion for new trial, raises the issue that the court erred in allowing a police officer to testify as to a telephone conversation with an alleged informant. The appellant urges that there was no proper foundation laid as to the informant's identity and reliability; that this evidence as inadmissible and prejudicial; and that the appellant's arrest was illegal in that there was no probable cause for it, being merely a telephone call received from an anonymous and totally unreliable informant.
The evidence as to this feature was in substance that the police officer received an anonymous telephone call approximately three weeks after the robbery in which the caller said, 'If you are looking for the man that robbed the Miron Motel, his name is 'Snapper' . . .'
The objection was that the state had not laid the proper foundation. The appellant contended that the witness 'doesn't know who this informant was and whether or not he was a reliable informant,' and that 'there are certain constitutional requirements that must be met' before admitting any evidence involving an informer.
State's counsel then told the court that arrest and search were not involved, that the witness was merely telling what caused him to pursue his investigation that led him to the appellant; and that whether the informant was reliable was not relevant.
Thereupon the trial judge stated, 'I will let you proceed.'
The witness then testified that he looked for two days for a man named 'Snapper,' found him and arrested him.
There is no merit in the objection to the admission of this evidence.
Out Code § 38-302, provides in essential part that 'When, in a legal investigation . . . conversations . . . are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence.' By virtue of this section an investigating officer is permitted to explain his conduct. Tanner v. State, 228 Ga. 829(3), 188 S.E.2d 512. That was precisely what was done here and no denial of due process or of right of confrontation of witnesses resulted. See Morris v. State...
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