Summary
In Collins v. State, 129 Ga. App. 87 (3), 88 (198 S.E.2d 707), this court held a sentence in a felony case was void because an indictment which showed a plea of guilty without counsel was void because the state did not show it was entered freely, voluntarily and intelligently on the part of the defendant.
Summary of this case from Stonaker v. StateOpinion
48137.
SUBMITTED MAY 2, 1973.
DECIDED MAY 11, 1973.
Aggravated assault. Fulton Superior Court. Before Judge Shaw.
Stanley P. Herndon, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Morris H. Rosenberg, Richard Hicks, for appellee.
The defendant was indicted and convicted of the offense of aggravated assault under Code § 26-1302. It appears from the evidence that he and a girl friend, Mrs. Dorothy Jordan, rode up to a service station at night and stopped in an area where service was not afforded to customers after dark. Mrs. Jordan called to an attendant and asked for six packages of cigarettes and the attendant replied that she would have to come to the area where cigarettes were kept. An argument and some cursing ensued and defendant and Mrs. Jordan testified that the attendant reached over into the automobile and struck defendant, but the attendant and his brother, who also worked at the station, testified that this was not true, and that defendant stuck a pistol out of the car window and shot at the attendant's brother, that the attendant knocked the gun away as defendant started firing and returned to the station office, got a gun and returned. In the meantime defendant had shot the attendant's brother. Defendant admitted that he shot three times and drove away, and as he drove out the attendant shot once at the car.
Mrs. Jordan testified for the defendant, and on cross examination she was asked if she were not making the statements she was making in her testimony because she was afraid of the defendant, to which she replied, "No, I am not afraid of him." Then she was asked if it were not true that the defendant shot her on a prior occasion. Defendant's counsel objected to this question and the answer it would elicit on the ground that it amounted to introducing the defendant's character in evidence by proof of an entirely separate offense at a different time, when he had not elected to place his own character in evidence.
After conviction the state offered on the sentence hearing an indictment to which defendant had entered a plea of guilty, and objection was urged on the ground that the record showed no counsel representing him at the time, and that there was no showing that the plea had been entered freely and voluntarily. Held:
1. The general grounds are without merit.
2. The information sought from Mrs. Jordan by way of cross examination was for the purpose of impeaching or discrediting her testimony, and not for proving that the defendant had committed this or another offense, or for showing his character. A defendant's character is not placed in evidence in the sense that doing so is proscribed where the evidence, offered for another purpose, may tend incidentally to do so ( Owensby v. State, 149 Ga. 19 (1) ( 98 S.E. 552); Howell v. State, 162 Ga. 14, 20 ( 134 S.E. 59)), as for example, testimony that the defendant was seen in a police car ( McGaskey v. State, 115 Ga. App. 627 (1) ( 155 S.E.2d 817)); or that for identification his picture was picked by the victim from a police album ( Martin v. State, 225 Ga. 234 ( 167 S.E.2d 638)); or from a "mug shot" ( Creamer v. State, 229 Ga. 704 (2) ( 194 S.E.2d 73)); or that he had been seen in court three times ( Cherry v. State, 220 Ga. 695 (3) ( 141 S.E.2d 412)); or that he was identified by a policeman ( James v. State, 223 Ga. 677 (11) ( 157 S.E.2d 471)); or by testimony that defendant's father had said that defendant was "drunk and would get into trouble, and that he was pretty bad when drinking" ( Clifton v. State, 187 Ga. 502 (5) ( 2 S.E.2d 102)); or by evidence that he was on trial in another court ( Creamer v. State, 229 Ga. 704, 708, supra); or that he was using a car bearing an improper tag ( Callahan v. State, 229 Ga. 737, 742 ( 194 S.E.2d 431)); or that defendant (charged with soliciting for prostitution) had been treated for venereal disease ( Bennefield v. State. 86 Ga. App. 285, 288 ( 71 S.E.2d 760)). The rule applies to evidence elicited on cross examination. Daugherty v. State, 225 Ga. 274 (2) ( 168 S.E.2d 155). This ground is without merit.
3. The admission of the indictment on which defendant had, without counsel, entered a plea of guilty, and without any showing that the plea was entered freely, voluntarily and intelligently, was error. Burgett v. Texas, 389 U.S. 109, 115 ( 88 SC 258, 19 L.Ed.2d 319); United States v. Tucker, 404 U.S. 443 ( 92 SC 589, 30 L.Ed.2d 592); Clenney v. State, 229 Ga. 561, 563 (4) ( 192 S.E.2d 907). The sentence is, therefore, void, and the case is remanded for the purpose of a new trial on the issue of punishment only.
Judgment affirmed as to the defendant's conviction; reversed as to the sentence and remanded for a new trial on that issue only. Pannell and Stolz, JJ., concur: