Ward v. State , 239 Ga. 205 ( 1977 )

Bowles, Justice,

dissenting.

I dissent from Division 5 of the majority opinion and the judgment of reversal of the sentence imposed.

Appellant’s appeal to this court, contends that his constitutional rights were violated when he received a death sentence at his last trial, because the jury verdict in his first trial found no aggravating circumstances. The majority opinion, studiously avoids the constitutional grounds, and I conclude from what is said that this portion of the decision is based on statutory grounds, or conclusions, that the majority feels are mandated by the statute. It is constitutionally permissible for a jury to give to a defendant a more severe punishment in the second trial than in a first trial. Chaffin v. Stynchcombe, 412 U. S. 17 (93 SC 1977, 36 LE2d 714) (1973). A death sentence in a second trial as opposed to a life sentence in a first trial has been approved. Stroud v. United States, 251 U. S. 15 (40 SC 50, 64 LE 103) (1919).

There being nothing in the record to indicate that the death sentence in the second trial was "imposed under the influence of passion, prejudice, or other arbitrary factor ” (Code Ann. §27-2537 (c) (1)), and since nothing is said about this in the majority opinion, I conclude that it does not apply.

The second pertinent statutory requirement on which the majority opinion is based reads "(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Code § 27-2537 (c) (3). (Emphasis supplied.) The majority opinion says that it is not possible in this case to find the death penalty is not disproportionate to the penalty imposed in similar cases because we have "an identical case” involving the same defendant in which the death penalty was not imposed.

We readily agree that the defendant is the same and the indictment is the same, but the majority opinion fails to point out that the evidence presented in each trial was not the same. It is reasonable to conclude that a jury trying a case would not likely impose the death penalty on an individual if the evidence against him was circumstantial or not conclusive. Under earlier law in force in this state, if the evidence against a defendant was circumstantial the court was permitted by law to set aside a sentence of death. Code § 26-1005 (1933). On the other hand, if another jury, to whom additional or different evidence is presented, finds clearly that the defendant is guilty of the crime, they would be more prone, and justly so, to impose the death penalty. The murder for which the defendant was tried and convicted, in each instance, was a horrible one, with all the elements of premeditation, revenge, and a full intention to destroy the life of the victims. The difference being, at the first trial the state did not have the benefit of evidence of a confession made by the defendant. The confession was made after the first and before the last trial. A disinterested witness testified to the confession. Thus, the evidence in the two trials was different and the cases as presented are different. Assuming the defendant had received a death sentence in the first trial and upon appeal was granted a new trial, under no stretch of the imagination would he be willing to accept the death sentence as being determinative of his punishment, with the second trial only determining his guilt or innocence. To adopt the majority view is to hold that our adversary system of trying an accused for a crime is somewhat like a ratchet wrench, that turns only one way, and that in the direction of the accused. It is my view that the provision concerning disproportionate penalties in similar cases, has reference to final convictions in the cases that are compared. It is not logical to compare final judgment in the case at bar with an inconclusive and nonfinal judgment at a prior trial, in which the evidence was not nearly so convincing or persuasive. We have approved death sentences in cases under circumstances no more horrible than those in this case. For the future should we use the first trial of Ward as a similar case? Or the last trial? If either, should we set aside the death penalty in future cases that are less vile and horrible than this case?

I am authorized to state that Chief Justice Nichols and Justice Jordan join in this dissent.