Street v. State

227 S.E.2d 750, 237 Ga. 307, 1976 Ga. LEXIS 1474
CourtSupreme Court of Georgia
DecidedJuly 9, 1976
Docket30644
StatusPublished
Cited by59 cases

This text of 227 S.E.2d 750 (Street v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Street v. State, 227 S.E.2d 750, 237 Ga. 307, 1976 Ga. LEXIS 1474 (Ga. 1976).

Opinions

Undercofler, Presiding Justice.

The appellant, George Street, was indicted by the Pierce County Grand Jury for murder and armed robbery occurring on October 14, 1974. Following a trial by jury from December 16, 1974, to December 19, 1974, the appellant was convicted on both counts and sentenced to death for murder and life for armed robbery. The case is here on appeal and for review of the death sentence imposed.

I. Summary of the Evidence.

On the morning of October 14, 1974, the appellant’s common-law wife, Ruby Taylor, went into labor and was taken to the Pierce County Hospital for delivery. The hospital policy required that before a patient could be transferred from the emergency room (treatment room) into the hospital, proper arrangements had to be made to cover the hospital expense.

The appellant was seen at the hospital at 6:30 a.m., 9:00-9:30 p.m., and again at 2:00-2:30 p.m. on October 14, 1974. On the latter occasion, the appellant was noticed to have a bandage wrapped around two fingers of his left hand. He also paid $29.00 on the hospital bill of Ruby Taylor.

Mr. M. B. "Red” Herrin, the victim, drove a school bus and operated a taxi service. Herrin’s unattended cab was first noticed at 12:30 p.m. A subsequent search for the victim resulted in finding his body, with his throat cut and fourteen other stab wounds, placed head first in an old well behind an abandoned house. There were numerous blood stains in the cab and around the house where the crime occurred.

The appellant had been seen in the victim’s cab.

The appellant was subsequently apprehended and after being advised of his constitutional rights he made a statement, in summary as follows:

After leaving the hospital, and before lunch, the appellant contacted Mr. Herrin to drive him to his mother-in-law’s home. When they arrived at her home, the appellant stayed for a few minutes before returning to the taxi. Mr. Herrin then drove him back into town where [308]*308Street attempted to telephone his mother, who did not answer the phone. The appellant then had Mr. Herrin return him to his mother-in-law’s home, and thereafter drive him back into town where he again tried unsuccessfully to call his mother. At that point, Mr..Herrin informed the appellant that his fare was now $38. The appellant knew he had only $20 so he instructed Mr. Herrin to drive him to his brother-in-law’s where he would get the money. He directed Mr. Herrin to the abandoned house under the pretense that his brother-in-law resided there. When they arrived at the house the appellant went inside, returned and told Mr. Herrin that his brother-in-law had apparently moved. Mr. Herrin then informed Street that he must pay the fare or he would take him to the sheriff. The appellant stated that he was not going to the sheriffs office, at which time Mr. Herrin got out of the taxi and they started tussling. The appellant drew his hawk bill knife and slashed Mr. Herrin. He then ran into the house followed by Mr. Herrin. The appellant ran through the house and circled behind Mr. Herrin. Mr. Herrin continued through the house and went over near the well and as he turned, George Street pushed him head first into the well. The appellant then ran to the taxi and drove it back into Blackshear where he abandoned it.

Personal items belonging to the victim, including a billfold and a watch that appellant had been seen wearing were found in a search of the house where the appellant was living as well as the murder weapon, a hawk bill knife.

An autopsy revealed that Mr. Herrin suffered numerous knife wounds. The cause of death was multiple deep knife wounds and drowning.

II. Enumerations of Error.

1. In Enumeration 1 the appellant alleges the court erred in overruling his motion for change of venue.

The grounds of the motion were extensive adverse pre-trial publicity making a fair trial in the county or surrounding counties unobtainable, and danger of violence to the defendant.

We note there was no violence toward the appellant during the trial. That much of the ground for change of [309]*309venue is moot.

The appellant based his motion on news articles in the Blackshear Times on October 17, 1974, October 24, 1974, and November 14,1974, and the Waycross Journal Herald on October 17,19, and 24, and November 11,1974.

Long-time residents of the county, called by the state, testified that they believed the appellant could get a fair trial in the county.

The resulting prejudice alleged by the appellant is, "During the jury selection procedure at the trial itself on December 16, 1974, a juror, Mrs. J. P. Knowlton, indicated that she had a fixed opinion as to the guilt of the appellant. (Tr. 2) Although it is not reflected in the record, numerous jurors indicated on voir dire that they were acquainted with the facts of the case either through having read about it in the newspaper or some other means.”

We note that the juror, Mrs. J. P. Knowlton, was not considered until after twelve jurors and the first alternate had been selected. She was then excused by the defense. There is no indication of how this could have prejudiced the appellant.

In Jarrell v. State, 234 Ga. 410, 415 (216 SE2d 258) (1975) this court held, ". . . the grant or denial of motions for change of venue in criminal cases lies largely within the discretion of the trial judge. The exercise of that discretion will not be reversed on appeal unless it is made to appear that there has been an abuse of discretion. . . ” citing Anderson v. State, 222 Ga. 561 (150 SE2d 638) (1966) and cits. No abuse of discretion is demonstrated here. Code Ann. § 27-1101.

Although we are satisfied that the trial court did not err under Georgia law, the increasing coverage of criminal matters by the news media and the attendant litigation justifies an examination of the standards developed by the Supreme Court of the United States under the Due Process Clause of the Fourteenth Amendment and the right to trial by jury under the United States Constitution.

In Marshall v. United States, 360 U. S. 310 (1959), a case involving conviction in federal court, the Supreme Court of the United States held that the harm to the [310]*310petitioner that resulted when prejudicial information denied admission into evidence was brought before the jurors through newspapers (during the trial) requires a new trial be granted. The Marshall decision was based on the court’s supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts. In Murphy v. Florida, 421 U. S. 794, 798 (95 SC 2031, 44 LE2d 589) (1975) the court held, "We cannot agree that Marshall has any application beyond the federal courts.”

Likewise, we must conclude that the recent case of United States v. Williams, 523 F2d 1203 (5th Cir., 1975), involving a conviction in federal court was based on an application of those standards for enforcement of the criminal law in the federal courts.

The cases pertinent to the due process standards for state trials have been placed in perspective by the United States Supreme Court in Murphy v. Florida, supra.

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Bluebook (online)
227 S.E.2d 750, 237 Ga. 307, 1976 Ga. LEXIS 1474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/street-v-state-ga-1976.