Scott v. State , 230 Ga. 413 ( 1973 )

Undercofler, Justice.

Troy Scott was convicted of murder on two counts and was sentenced to death on each count. He filed an amended motion for new trial. The trial court granted a new trial on the death sentence portion of the judgment and denied a new trial on the verdict of guilty. The defendant appeals to this court. Held:

1. The appellant contends that it was error for the trial court to permit Louis Beard to testify as a witness over his objection when he was not on the list of witnesses furnished to him, and for this reason his motion for new trial should be granted.

The record shows that the assistant district attorney stated in his place that he had heard about the witness "yesterday for the first time after the trial started and immediately upon hearing about him, I furnished his name to Mr. Hubble, so I would state in my place that I did not know of this witness at the time I furnished a list of witnesses and his name did not appear on the police investigation that was furnished to me, report of the investigation.”

Detective W. O. Allen testified that the officer who had talked to this witness on the day of the murders had been removed from the investigation; that he had obtained the file on the case and taken over the investigation only the week before the trial started; that the list of witnesses had not been communicated to him but that he heard there was a white man who knew something about the case and in checking the police department file found a slip of paper with the witness’s name on it; and that he finally located the witness on Saturday before the trial began on Monday; and, that he gave the name of the witness to the prosecuting attorney on that Monday.

The appellant argues that the officers who originally investigated the case knew about this witness and that their knowledge was imputable to the prosecuting attorney. There is no merit in this contention. In Evans v. State, 227 Ga. 571 (3) (181 SE2d 845), this court held that the knowledge of police officers who knew about two witnesses shortly after the crime because of their investigation of the case was not imputable to the district attorney. Also, in this connection, see Yeomans v. State, 229 Ga. 488 (2) (192 SE2d 362).

Argued February 12, 1973 Decided April 13, 1973. Herndon & Hubble, John W. Hubble, Jr., for appellant. Walker P. Johnson, Jr., District Attorney, Arthur K. Bolton, Attorney General', Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Thomas W. Greene, Assistant Attorneys General, for appellee.

2. The Attorney General of Georgia has moved to dismiss the appeal in this case because it is premature. He argues that the trial court has granted the motion for new trial on the sentence portion of the trial and therefore the case is still pending in the court below.

In Sullivan v. State, 229 Ga. 731 (194 SE2d 410), this court in compliance with the mandate of the Supreme Court of the United States in that case and the other cases therein listed, affirmed the judgments of convictions in those cases and directed the presiding judge in each of the trial courts involved to "enter a judgment sentencing the defendant to be imprisoned for the balance of his life, this being the only lawful sentence which may be entered upon the conviction and finding of the jury that the defendant should receive the maximum sentence permitted by law. Under decisions exemplified by Fowler v. Grimes, 198 Ga. 84, 92 (31 SE2d 174), it is not necessary that the defendant be present in open court or represented by counsel. However, direction is given that each defendant and his counsel of record be served with a copy of the life sentence within five days from the date of entry.”

The motion to dismiss the appeal because the matter of sentence is still pending in the trial court is, therefore, denied. The trial court is directed to impose a life sentence in this case according to the ruling in Sullivan v. State, 229 Ga. 731, 732, supra.

Judgment affirmed with direction.

All the Justices concur, except Gunter, J, who dissents.