Summary
In Kennemore v. State, 222 Ga. 252 (149 S.E.2d 471), the conviction of appellant's brother William for this same homicide was affirmed.
Summary of this case from Kennemore v. StateOpinion
23464.
ARGUED MAY 9, 1966.
DECIDED JUNE 9, 1966.
Murder. Jackson Superior Court. Before Judge Dunahoo.
C. Winfred Smith, for appellant.
Floyd G. Hoard, Solicitor General, Arthur K. Bolton, Attorney General, Davis Davidson, for appellee.
1. Where two or more persons acting jointly and with a common purpose commit a criminal offense, they may be jointly or separately indicted. Snead v. State, 165 Ga. 44 (3) ( 139 S.E. 812); Hamilton v. State, 54 Ga. App. 249 ( 187 S.E. 594). Conspiracy to commit murder need not be alleged in the indictment. Turner v. State, 138 Ga. 808 (2) ( 76 S.E. 349). It was not error to overrule the motion to quash the indictment because another charged with the same offense had been previously convicted.
2. It was not error to overrule the defendant's motion to suppress certain physical evidence (a shotgun barrel) and the testimony as to an alleged confession given by a witness for the State as complained of in enumeration of errors Nos. 2, 21, 23, 33 and 34.
3. It was not error to admit the testimony of State witnesses Angel, Stells and Marlowe as complained of in enumerated errors 3, 4, 5, 6, 7, 8, 26 and 27 over the objection that the testimony was hearsay.
4. The court did not err in admitting the testimony of State witnesses Meyers, Akin and Smith as to incriminating statements made by the defendant to them shortly after the alleged killing of Marlowe and before his arrest, as complained of in enumerated errors 9, 10, 11, 13, 14, 15, 24 and 25. The court was authorized to find from their testimony prima facie that the defendant's statements were freely and voluntarily made, and this issue was in the charge of the court left for determination by the jury. Bryant v. State, 191 Ga. 686 (1) ( 13 S.E.2d 820).
5. It was not error for the court to admit in evidence the testimony of State witnesses Stewart, Hudson, Underwood, Patton and Elrod as to their observing on the night of February 27, 1965, two automobiles on public highway U.S. 129 between Gainesville and Jefferson, one "chasing" the other. When taken in connection with other evidence, it was admissible as identifying the defendant and his brother in one car and the deceased Marlowe in another at the time and place near where the deceased's body and his wrecked car were found. This disposes of enumerated errors 16, 17, 18, 19, 20, 28, 29, 30, 31 and 32.
6. The court did not err in admitting certain physical evidence and permitting such evidence to be carried to the jury room and refusing to declare a mistrial on the ground that the physical evidence was admitted when the jury was not in the courtroom. This ruling disposes of grounds 22, 38 and 39.
7. The court's instructions to the jury on the law of conspiracy were authorized by the evidence and not subject to the criticism in enumerated grounds 36 and 37.
8. It was not error for the court to permit the State's counsel to plead entrapment and cross examine State witness Ann Akin.
9. The verdict is supported by the evidence.
ARGUED MAY 9, 1966 — DECIDED JUNE 9, 1966.
Under an indictment charging the appellant with the murder of Donald Marlowe on February 27, 1965, he was on his trial found guilty with a recommendation of mercy and sentenced to life imprisonment. He filed a notice of appeal and enumerates 43 errors.
Only headnotes 2 and 9 need elaboration.
2. Police officers in DeKalb County obtained a warrant to search the premises of Lawrence Kennemore, a brother of the defendant, on March 8, 1965. They executed the warrant and found nothing. They made a second visit on the same day finding Lawrence Kennemore at home. Kennemore took the officers to the back yard with him and dug up a shotgun barrel which was turned over to the officers.
Defendant moved to suppress the use of the shotgun barrel as evidence on the ground that "the possession and obtaining of same was by illegal search and seizure and pursuant to a void search warrant and upon the further ground it was not obtained legally pursuant to a legal arrest and the same should not be permitted to be offered in evidence by the State as the same is inadmissible in evidence upon the following ground, it does not appear by affidavit or otherwise that probable cause exists." This motion was overruled. On the trial, he objected to the admission of the gun barrel in evidence on the same grounds. Errors are enumerated in grounds 2, 21, 23, 33 and 34.
These grounds are without merit. Since the search was not on the premises of the defendant, he is in no position to claim that the gun barrel was obtained by an illegal search. Davis v. United States, 138 F.2d 406, cert. denied 321 U.S. 775. The security of person and home from unreasonable search and seizure does not extend to open fields. Hester v. United States, 265 U.S. 57 ( 44 S.C. 445, 68 LE 898); see Anno. 74 ALR 1456.
The motion to suppress the testimony of State witness Dood as to the defendant's oral confession was properly overruled.
9. The jury was authorized to find from the evidence that: defendant's brother Richard had threatened to kill the deceased because of his attentions to Richard's wife; that the defendant and his brother Richard Kennemore, on the night of February 27, 1965, in a Valiant automobile, followed the deceased, who was driving a Corvair automobile, on U.S. Highway 129 from Gainesville to Jefferson, Ga.; that they had in the car a 12-gauge shotgun; that as the Kennemore car overtook the deceased's car, the defendant fired a blast into the left rear of the deceased's car; that the Kennemore car struck the deceased's car, causing it to turn over; that the defendant's brother took the shotgun and fired a load of shot into the body of Marlowe; that shortly thereafter Marlowe was found dead beside the wrecked Corvair, the evidence showing that occurrence was in Jackson County. The direct and circumstantial evidence corroborates the incriminating admissions made by the defendant and supports the verdict of guilty.
Judgment affirmed. All the Justices concur.