Duhart v. State

228 S.E.2d 822, 237 Ga. 426, 1976 Ga. LEXIS 1256

• Court: Supreme Court of Georgia
• Decided: September 7, 1976
• Docket: 31275
• Status: Published

Opinions

Undercofler, Presiding Justice.

Defendant Leon Duhart appeals from his convictions of armed robbery and murder and jury sentences of twenty years plus life, to be served consecutively. He raises two enumerations of error: that the circumstantial evidence does not support the verdict and that the armed robbery conviction should be set aside as a lesser included offense in the murder. We affirm.

1. The evidence, though circumstantial in this case, is sufficient to support the verdicts. The defendant, a nineteen-year-old, apparently began his evening of crime between 8 and 9 o’clock on January 13,1975, by breaking into Curtis Zeigler’s Cadillac parked in downtown Macon. His fingerprints were discovered inside, and on the outside of the passenger door. Zeigler’s .357 magnum, blue steel Smith & Wesson was missing.

About 11 o’clock, as Mr. William McElroy approached his parked red Volkswagen, a man in a three-quarter length leather jacket, whom the victim later identified from photographs and in a lineup as the defendant, shoved a blue steel magnum pistol against him and demanded his car keys. Since McElroy’s wife had them he could not produce the keys and the defendant shot him in the arm, and fired another shot through the windshield. Defendant then threatened Mrs. Wanda McElroy who had just arrived, telling her to get in the car or he’d shoot her also. He took her money, told her to take off her pants and shot her between the legs. He then told them to get out of the car or he’d kill them. They walked about ten feet before they collapsed. A bullet recovered from the VW most probably was fired from a .38 or .357 Smith & Wesson, according to the ballistics expert who testified at trial. No fingerprints belonging to the defendant were found on the VW.

A few minutes later, a driver for the A.Y.S. Cab Company was approached by a "wild-eyed” young male who desired to go to the Tindall Heights area of the city. After the driver requested a specific address, the rider changed his mind saying he’d get a less curious Yellow Cab driver to take him to his destination. The driver described him as acting crazy, not normal and as wearing a dark coat. He was able to pick out defendant’s picture from several photographs.

Three Yellow Cab drivers and dispatchers identified the defendant as the person who came into their office seeking a ride to the Tindall Heights area. Since he had to wait ten to fifteen minutes for a taxi to become available, they had time to study his appearance. Each gave a similar description and picked his photo from several others. They also noted that the defendant appeared nervous when a siren was heard passing by.

When the victim, taxi driver A. B. Shirah, arrived to pick up the defendant, at about 11:30, he was sent with the defendant to the Dempsey Hotel to get another fare going in the same direction. Shirah called in about five minutes later saying no one had appeared from the hotel and he was proceeding to Tindall Heights with the defendant. At 11:45, the dispatcher tried to radio Shirah to make another pick up on his way back into town, but there was no answer.

The taxi drivers testified that Shirah had been working since about three that afternoon and that he had about sixty dollars in his right front pants pocket. A minister found Shirah’s body lying outside his cab in the Tindall Heights area about three blocks from the defendant’s home. His pockets were turned inside out and he had been shot in the back; the bullet had passed through his body. The medical examiner testified that the wound had been made by either a .357 or .38 bullet which had been fired from a gun pressed against the victim’s back. The bullet was not recovered, but the defendant’s fingerprint was found on the front window on the driver’s side of the taxi.

We find this evidence meets the criterion set out in Code Ann. § 38-109: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Woodruff v. State, 233 Ga. 840 (213 SE2d 689) (1975); Parks v State, 203 Ga. 302 (46 SE2d 504) (1948). The evidence supported the verdicts of guilty on both the murder and armed robbery, and the trial court did not err in overruling defendant’s motion for a new trial.

Argued July 12, 1976 Decided September 7, 1976. Claude W. Hicks, Jr., for appellant. Fred Hasty, District Attorney, W. Donald Thompson, Walker P. Johnson, Assistant District Attorneys, Arthur K. Bolton, Attorney General, Harrison Kohler, Staff Assistant Attorney General, for appellee.

2. Defendant also contends that armed robbery is a lesser included offense of murder and thus that conviction and sentence should be vacated. He urges Burke v. State, 234 Ga. 512 (216 SE2d 812) (1975) in support of his argument. That case is clearly distinguishable as it involves a lookout during an armed robbery who was convicted of the malice murder of the shopkeeper, actually killed by an accomplice. There, the malice necessary to the murder conviction was shown by the accused’s participation in the armed robbery. Since the armed robbery was an essential element of the murder, the armed robbery was a lesser included offense and was vacated.

In the case now before us, however, the armed robbery is not an essential element of the murder, but is a separate crime against the same victim. Burke v. State, supra (see Division 4, Hill, J., concurring).

Judgment affirmed.

All the Justices concur, except Gunter, J., who concurs specially.