Nance v. State

236 S.E.2d 752, 239 Ga. 381, 1977 Ga. LEXIS 780

• Court: Supreme Court of Georgia
• Decided: June 21, 1977
• Docket: 32256
• Status: Published

Opinions

Per curiam.

This appeal by Beverly June Nance is from an armed robbery conviction in Clayton Superior Court. The state contended that the appellant was an accomplice in the armed robbery. After conviction, the appellant was sentenced to six years imprisonment.

The state presented the following evidence at trial. Mrs. Adellé Eggleston testified that on the morning of June 7, 1975, at approximately 7 o’clock, a young white male carrying a gun knocked on the front door of her duplex apartment, located at 4381 Hendrix Drive, Forest Park, Georgia. As she answered the door, he forced his way into the apartment. He demanded her jewelry, specifically "the little round, gold case with the glass top.” She gave him the jewelry box of that description which contained approximately $15,000 worth of jewelry, as well as various credit cards.

Mrs. Eggleston ran out of her house in pursuit of the robber as he was fleeing the scene. She saw him get into a car parked in front of and across the street from her neighbors’ apartment building and drive off. She testified that someone with long, black hair was sitting at the driver’s seat of the getaway car. She described the car as a "gray, light or tan, dirty-looking car... an American car.”

Mrs. Eggleston further testified that only one person, the defendant, knew of the "round, glass top, gold jewelry box.” Mrs. Eggleston testified that she had befriended the defendant, who had been a nurse at a hospital at which she had been treated, and loaned her a watch from this jewelry box.

Mrs. Eggleston’s neighbor, who lives in the duplex apartment adjoining Mrs. Eggleston’s, testified at trial that he was inside his apartment drinking coffee at the time of the robbery. He heard some commotion outside and went to the door. He observed Mrs. Eggleston running out of her house. She told him that someone had just robbed her and pointed to a man running from her apartment. He testified that the man ran across the street and got into a car. He testified that someone was in the car but he could not identify that person. He testified that the car was "a maroon-looking colored automobile.”

Another neighbor of Mrs. Eggleston’s, who lived in a duplex apartment across the street, testified that on the morning of June 7,1975, at approximately 7 o’clock, there was a car with a woman in it parked in front of her driveway. This neighbor described the car as a beige Bonneville with a black top with damage to the right front quarter panel. The woman kept looking back out the window behind her car. The car was blocking this neighbor’s driveway, but the woman moved the car across the street by the time that the neighbor left to take her husband to work. When the neighbor returned, the woman was gone. The neighbor made a positive pre-trial and in-court identification of the girl in the automobile as the defendant, Beverly June Nance.

Based on the foregoing information, the police obtained a warrant for the defendant’s arrest as well as a search warrant for a residence. At that time she was living with her mother in Jonesboro. A search of her residence did not uncover any of the stolen goods. A brown 1967 or 1968 Oldsmobile registered in the name of the defendant was found parked at their apartment.

1. The defendant enumerates as error the failure of the trial court to instruct the jury on the law of circumstantial evidence. The trial court did not commit reversible error when it refused to instruct on circumstantial evidence. The eyewitness identification of the defendant by the victim’s neighbor is direct evidence that the victim was concerned in the commission of the crime of armed robbery. See Code Ann. § 26-801.

2. The defendant’s first and second enumerations of error are based on general grounds and are without merit.

3. Appellant’s final enumeration of error that the assistant district attorney invited the accused to take a polygraph examination is not supported by the evidence. The appellant on direct examination made the statement that she wanted to take a polygraph examination. Pretermitting the question of whether the district attorney’s offer to accommodate the appellant in her desires by furnishing a polygraph examiner was error, the trial court adequately instructed the jury that results of polygraph examinations are not admissible as evidence.

Submitted April 29, 1977 Decided June 21, 1977 Rehearing denied July 14, 1977. Mackay & Elliott, James A. Mackay, David L. G. King, Jr., for appellant. William H. Ison, District Attorney, James W. Bradley, Assistant District Attorney, Arthur K. Bolton, Attorney General, Daryl A. Robinson, Staff Assistant Attorney General, for appellee.

Judgment affirmed.

All the Justices concur, except Jordan and Hill, JJ., who concur specially, and Undercofler, P. J., and Ingram, J., who dissent.