Willingham v. State
| Decision Date | 08 July 1992 |
| Docket Number | No. S92A0624,S92A0624 |
| Citation | 418 S.E.2d 25,262 Ga. 324 |
| Parties | WILLINGHAM v. The STATE. |
| Court | Georgia Supreme Court |
James P. Brown, Jr., McDonough, for Willingham.
Tommy K. Floyd, Dist. Atty., Marie R. Banks, Asst. Dist. Atty., McDonough, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, and Mary H. Hines, Staff Atty., Atlanta, for the State.
This appeal is from appellant's convictions for murder, armed robbery, theft by taking, and arson. 1 The State's evidence showed that appellant shot his father in the back of the head five times, 2 took money and jewelry from him, poured kerosene on the body and around the house, and then drove to Alabama with his girlfriend in his father's car.
1. In his first enumeration of error, appellant contends the trial court erred in permitting a witness to testify in violation of the rule of sequestration. The trial court's ruling that a violation of the rule did not make the witness incompetent and its instruction that the jury was authorized, in weighing the witness's testimony, to take into consideration the fact that the witness was present during the testimony of other witnesses were in perfect accord with this court's holding in Blanchard v. State, 247 Ga. 415(1), 276 S.E.2d 593 (1981). We find no error in permitting the witness to testify.
2. In three enumerations of error, appellant contests the sufficiency of the evidence to support his convictions.
a. The armed robbery count of the indictment alleged that appellant took a gold nugget ring and a gold nugget watch from the victim. Appellant contends that there was no evidence at trial that the victim had those items in his possession on the date the crimes occurred. However, another son of the victim testified that the jewelry items recovered when appellant was arrested, which matched the description in the indictment, belonged to the victim and that he wore them. Appellant's girlfriend testified that shortly after hearing a series of gunshots, she saw appellant standing in the victim's bedroom in front of the victim's dresser holding the watch and the ring. That testimony, coupled with the evidence that appellant shot his father, was sufficient to prove the armed robbery charge. Moore v. State, 233 Ga. 861(2)(b), 213 S.E.2d 829 (1975).
b. The theft by taking count alleged that appellant took an automobile which was the property of the victim. Appellant contends that the State's failure to prove that the victim was the owner of the car, when considered with evidence that someone else owned the car, entitled appellant to a directed verdict of acquittal on that charge. The Court of Appeals, in Hall v. State, 132 Ga.App. 612, 208 S.E.2d 621 (1974), stated two principles pertinent to this issue: that lawful possession of property is sufficient, for the purposes of the theft statute, to make the property in question the property of the victim; and that a thief cannot question the title of an apparent owner. Testimony at trial established...
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