Whitus v. State
| Decision Date | 12 April 1966 |
| Docket Number | No. 23397,23397 |
| Citation | 222 Ga. 103,149 S.E.2d 130 |
| Parties | Phil WHITUS v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. It is never error in a criminal case for the trial judge to refuse to direct a verdict of not guilty.
2, 3. Evidence that a witness was in a drunken condition, or even insane, on the occasion when the events to which he testified occurred was for consideration by the jury in passing upon his credibility and does not go to his competency.
4. Where there is no objection to evidence its admission is not reversible error.
5. A defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury panel put upon him.
6. Since the judgment is affirmed, we do not pass upon whether the appeal should be dismissed.
Phil Whitus was indicted, tried and convicted without recommendation for the murder of James Eldridge (Peter) Glenn. The case is here for review by notice of appeal from the Mitchell Superior Court. This is the second appearance of the case in this court. Whitus v. State, 216 Ga. 284 (116 S.E.2d 205). In the former case the judgment was affirmed; however, a new trial was granted on writ of habeas corpus to the federal court.
The evidence on the former trial of the case was stated substantially as follows: Shortly after midnight on November 15, 1959, James E. Glenn left his home to investigate a disturbance by cursing and loud talking on the public road in front of his house. He found the four defendants. The automobile which Davis had been driving was in a ditch. All of the defendants had been drinking intoxicants. The defendant Whitus knew Glenn and asked him to help them get the car out of the ditch. Glenn said he would, and went to his home, got his .22 calibre pistol, and returned to the scene with his automobile where he discovered that the defendants had succeeded in getting the car onto the road. Glenn followed them down the road, and when he caught up with them, Davis suddenly braked his automobile, causing the front of Glenn's car to strike the rear of the car driven by Davis. The defendants then drove a short distance to the home of Leon Davis with Glenn still following them at a distance. While the other defendants went to the backyard of Davis's house, Davis procured his rifle from the house and went down the road to meet Glenn. Shortly thereafter, Davis returned to the yard with his rifle under his arm and Glenn's pistol in his hand, and fired two shots in the direction of the other defendants and called them to come with him. They joined Davis, and all of them went to the road where they found Glenn's car in a ditch. Glenn asked the defendants to help him get his car out of the ditch and back to his home. Davis returned Glenn's pistol to him. After more conversation about removing Glenn's car from the ditch Davis cursed Glenn and hit him on his head with the rifle barrel. Davis then took Glenn's pistol again. At the direction of Davis the other defendants put Glenn, who was unconscious, in his car.
In this connection John Daniels, one of the codefendants, testified:
The defendants then got in Davis's car and drove about four miles. Davis said: 'We are in this thing together and we just as well do it right.' Davis asked the defendant what he would do: 'Would you leave him in front of your house or get him out in the front of your house?' The defendant replied: Davis then said: 'I'm going back and kill the son of a bitch now to keep him from talking, cause if he talks he could have all four of us hanged and he'll be walking around here a free man.' All of the defendants with Davis driving returned to the Glenn car where they found Glenn in the car and still unconscious. Davis with Glenn's pistol in his hand directed the defendant to get in his car and push the Glenn car, which Davis would steer, to a point where Davis would signal with his hand. The Glenn car was pushed about four miles and then off the road into a wooded area where no one lived. Davis, with the pistol in his hand, ordered the defendants to race the motor while he fired the shots. Davis went back to the Glenn car and fired one shot into Glenn's head. Glenn's body fell out of the car and Davis fired three more shots into Glenn's head. All of the defendants got into Davis's car, the defendant Whitus remarking: 'Now we can go home like nothing ain't happened.' All of the defendants went to the back of Whitus's house where they had hid their liquor and all except Daniels drank the liquor.
The evidence adduced upon the trial we now review included that submitted on the former trial. In addition there was some new evidence. According to the testimony of Daniels while they were pushing the Glenn car, Davis who was driving that car turned right when they reached an intersection and Whitus who was driving the other car then followed. Whitus was pushing Davis in Glenn's car at around 40 to 45 miles per hour. In this connection, a captain in the Georgia State Patrol, testifying as an expert witness, recounted some tests he had conducted. Basically the experiments showed that if a car traveling 40 m.p.h. turned right on the particular intersection it would take approximately 9 seconds to stop the car and for the driver to run back to the intersection, where he would have a clear view of the road continuing straight ahead. A car passing through the intersection and continuing straight ahead at 40 m.p.h. would travel in excess of 500 feet by the time 9 seconds had elapsed.
Other evidence relating to Whitus's participation in the crime as related by Leon Davis is set out in the opinion.
P. Walter Jones, Albany, William N. Sinrich, Morris Brown, Atlanta, for appellant.
Fred Hand, Jr., Sol. Gen., Pelham, Arthur K. Bolton, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for appellee.
1. (a) The first complaint of the enumeration of errors is: 'The court erred in failing to direct a verdict of acquittal for the defendant because of failure of the State to prove, beyond a reasonable doubt, the guilt of the defendant in the crime alleged to have been committed.'
It is never error in a criminal case for the judge to refuse to direct a verdict of not guilty. Anglin v. State, 222 Ga. 9(1), 148 S.E.2d 390; Winford v. State, 213 Ga. 396, 397(5), 99 S.E.2d 120; Albert v. State, 215 Ga. 564, 567(3), 111 S.E.2d 215. The act of March 15, 1966, Ga.L. 1966, p. --, amending the Appellate Practice Act of 1965, contains nothing contrary to the rule pronounced.
(b) We have carefully considered the averment of the first enumeration of error that the State failed to prove, 'beyond a reasonable doubt, the guilt of the defendant in the crime alleged to have been committed,' to determine whether it could be construed as tantamount to an allegation that the verdict was without evidence to support it. The conclusion is inescapable that the quoted language does not amount to an assertion that the evidence was not sufficient to support the verdict. This is true because a verdict supported by any competent evidence will not be disturbed by this court unless errors of law appear. Alfred v. State, 6 Ga. 483(2); Reed v. State, 195 Ga. 842(7), 25 S.E.2d 692.
Where evidence is adduced to authorize a conviction in a criminal case, it is the province of the jury to decide the weight and credit to be given the evidence and whether the State's proof when considered together with that submitted on behalf of the defendant meets the standard of removing every reasonable doubt as to the guilt of the accused. Code §§ 38-105 38-110. This is apparent from the definition of reasonable doubt as doubt that 'leaves the mind of the jury wavering and uncertain.' Chancey v. State, 145 Ga. 12(1), 88 S.E. 205; Lampkin v. State, 145 Ga. 40(3), 88 S.E. 563.
(c) However, had the question of the sufficiency of the evidence to support the verdict been brought to this court for review the result would have been the same. The defendant Whitus made a detailed statement in open court concerning the circumstances under which the deceased was slain. He frankly admitted he was present and participated in the unlawful homicide. His only defense was that he did not willingly take part in the crime, but that his participation was compelled by intimidation and coercion imposed upon him by a co-defendant Leon Davis. Davis testified, as a witness in the case, that the defendant Whitus's involvement in the criminal transaction was not only voluntary but that Whitus actually instigated the plot to slay the deceased.
Consequently, while Whitus's statement, which was corroborated by another co-defendant, John Daniels, was evidence of his innocence under the provision of Code § 26-402 which reads: 'A person committing a crime or misdemeanor under threats or meanaces, which sufficiently show that his life or member was in danger, or that he had reasonable cause to believe, and did actually believe, that his life or member was in danger, shall not be found guilty.' Davis's testimony was in conflict with Whitus's statement and testimony which resulted in a sharp conflict in the evidence and created an issue of fact for solution by the jury.
It is true Davis testified in response to questions propounded by the solicitor general: ...
To continue reading
Request your trial
-
Navarrete v. State
...516 S.E.2d 794 (1999) ("any possible state of intoxication goes to the credibility of the witness"), citing Whitus v. State, 222 Ga. 103(2), 149 S.E.2d 130 (1966), rev'd on other grounds in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). In addition, Davis told Wulff t......
-
Whitus v. State of Georgia Whitus v. State of Georgia, s. 650 and 253
...array of petit jurors was denied, petitioners were put to trial and were convicted. The Supreme Court of Georgia affirmed. Whitus v. State, 222 Ga. 103, 149 S.E.2d 130; Davis v. State, 222 Ga. 114, 149 S.E.2d 130. We granted certiorari. 385 U.S. 813, 87 S.Ct. 183, 17 L.Ed.2d 54. We find tha......
-
Teat v. State
...but that any possible state of intoxication goes to the credibility of the witness. This ruling was entirely correct. Whitus v. State, 222 Ga. 103, 110(2), 149 S.E.2d 130, rev'd on other grounds, sub nom. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599. The tactical decision n......
-
Coppolla v. State, A99A0687.
...time of the crime would affect his or her credibility, rather than competency to testify at the time of trial. See Whitus v. State, 222 Ga. 103, 110(2), 149 S.E.2d 130 (1966), rev'd on other grounds, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 Judgment affirmed. POPE, P.J., and ELDRIDGE, J.,......