Drake v. State, 247 S.E.2d 57 (Ga. 1978). · Go Syfert
Drake v. State, 247 S.E.2d 57 (Ga. 1978). Cases Citing This Book View Copy Cite
135 citation events (39 in the last 25 years) across 4 distinct courts.
Strongest positive: White v. the State (gactapp, 2015-06-22)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 38 distinct citers. How cited ↗
discussed Cited as authority (rule) White v. the State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2015 · confidence medium
Rather, this Court “can only review the evidence to determine if there is any evidence to support the verdict.” Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978).
discussed Cited as authority (rule) MORRISON Et Al. v. KICKLIGHTER
Ga. Ct. App. · 2014 · confidence medium
On appeal from the trial court’s denial of a motion for a new trial on the general grounds set forth in OCGA §§ 5-5-20 (verdict contrary to evidence and principles of justice and equity) or 5-5-21 (verdict strongly against weight of evidence), the appellate court has no discretion to grant a new trial on that ground; “we can only review the evidence to determine if there is any evidence to support the verdict.” Cook v. Huff, 274 Ga. 186, 186 (1) ( 552 SE2d 83 ) (2001) (citation and punctuation omitted); Drake v. State, 241 Ga. 583, 585 ( 247 SE2d 57 ) (1978).
discussed Cited as authority (rule) Nix v. State
Ga. Ct. App. · 2011 · confidence medium
But, unlike the trial court, an appellate court “do|esj not have the discretion to grant a new trial on these grounds; [it] can only review the evidence to determine if there is any *45 evidence to support the verdict.” (Citation omitted.) Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978).
discussed Cited as authority (rule) Hughes v. State
Ga. Ct. App. · 2009 · confidence medium
Adams and Doyle, JJ., concur. 1 OCGA § 16-6-4 (a). 2 Short v. State, 234 Ga. App. 633, 634 (1) ( 507 SE2d 514 ) (1998). 3 Clark v. State, 249 Ga. App. 97 ( 547 SE2d 734 ) (2001). 4 Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978). 5 Dae v. Patterson, 295 Ga. App. 818, 819 (1) ( 673 SE2d 306 ) (2009). 6 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 7 Green v. State, 293 Ga. App. 752, 753-754 (1) ( 667 SE2d 921 ) (2008). 8 Phillips v. State, 284 Ga. App. 224, 227 (1) (b) ( 644 SE2d 153 ) (2007). 9 Gregg v. State, 201 Ga. App. 238, 240 (3) (b) ( 411 SE2d 65 ) (1…
discussed Cited as authority (rule) Celestin v. State
Ga. Ct. App. · 2009 · confidence medium
Sheppard, Assistant District Attorney, for appellee. 1 See OCGA § 5-5-21. 2 Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978); Dixon v. State, 192 Ga. App. 845, 846 ( 386 SE2d 719 ) (1989) (the trial judge alone has discretion to grant a new trial where the defendant claims the verdict is against the weight of the evidence). 3 Dixon, supra. 4 Jones v. State, 219 Ga. App. 780 (1) ( 466 SE2d 667 ) (1996). 5 Gearin v. State, 255 Ga. App. 329, 330 ( 565 SE2d 540 ) (2002). 6 Id.; see Pruitt v. State, 279 Ga. 140, 141 (1) ( 611 SE2d 47 ) (2005). 7 (Citation and punctuation omitted.) Mille…
discussed Cited as authority (rule) Dae v. Patterson
Ga. Ct. App. · 2009 · confidence medium
Adams and Doyle, JJ., concur. 1 The Pattersons were relatives of Dae. 2 Harrison v. Harrison, 229 Ga. 692 (1) ( 194 SE2d 87 ) (1972). 3 Cornelius v. Lawrence, 203 Ga. App. 113 (2) ( 416 SE2d 115 ) (1992). 4 Lipscomb v. State, 194 Ga. App. 657 (1) ( 391 SE2d 773 ) (1990). 5 Hill v. Bailey, 187 Ga. App. 413, 415 (2) ( 370 SE2d 520 ) (1988). 6 Clark v. State, 249 Ga. App. 97 ( 547 SE2d 734 ) (2001). 7 Gledhill v. Brown, 44 Ga. App. 670, 672 (1) ( 162 SE 824 ) (1932). 8 Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978). 9 Sampson v. Jones, 236 Ga. App. 57, 58 ( 510 SE2d 902 ) (1999). 10 …
cited Cited as authority (rule) Williamson v. Strickland & Smith, Inc.
Ga. Ct. App. · 2003 · confidence medium
(Cit.)” Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978).
cited Cited as authority (rule) Flynn v. MacK
Ga. Ct. App. · 2003 · confidence medium
“We can only review the evidence to determine if there is any evidence to support the verdict. [Cit.]” Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978).
discussed Cited as authority (rule) Cook v. Huff (2×)
Ga. · 2001 · confidence medium
However, when a trial court denies such a motion, the appellate court does not have the discretion to grant a new trial on that ground. "[W]e can only review the evidence to determine if there is any evidence to support the verdict. [Cit.]" Drake v. State, 241 Ga. 583, 585 (1), 247 S.E.2d 57 (1978).
discussed Cited as authority (rule) DeLoach v. State
Ga. · 2000 · confidence medium
Ricketts v. Williams, 242 Ga. 303 ( 248 SE2d 673 ) (1978); Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978). "[I]t was the jury’s role to assess the credibility of the witnesses, resolve any conflicts in the evidence, and arrive at a determination of the facts. [Cit.]” Bowden v. State, 270 Ga. 19, 21 (4) ( 504 SE2d 699 ) (1998).
cited Cited as authority (rule) Jones v. State
Ga. Ct. App. · 1996 · confidence medium
Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978).
cited Cited as authority (rule) Willis v. State
Ga. · 1993 · confidence medium
Drake v. State, 241 Ga. 583, 585 ( 247 SE2d 57 ) (1978).
cited Cited as authority (rule) Crawford v. State
Ga. Ct. App. · 1993 · confidence medium
Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978).
discussed Cited as authority (rule) Daniel v. State
Ga. Ct. App. · 1993 · confidence medium
Although 44 4 [t]he corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty, [cit.],’ ” Brown v. State, 199 Ga. App. 18, 21 (4) ( 404 SE2d 154 ) (1991), 44[t]he necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime. [Cit.]” Drake v. State, 241 Ga. 583, 586 (3) ( 247 SE2d 57 ) (1978).
cited Cited as authority (rule) Simpson v. State
Ga. Ct. App. · 1989 · confidence medium
Drake v. State, 241 Ga. 583, 585 ( 247 SE2d 57 ).
cited Cited as authority (rule) Harrison v. State
Ga. · 1989 · confidence medium
Williams v. State, 222 Ga. 208, 220 ( 149 SE2d 449 ) (1966).” Drake v. State, 241 Ga. 583, 586 ( 247 SE2d 57 ) (1978), Berry v. State, 248 Ga. 430, 432 (1) ( 283 SE2d 607 ) (1981).
discussed Cited as authority (rule) Union Camp Corp. v. Daley (2×)
Ga. Ct. App. · 1988 · confidence medium
On appeal, we are bound to view and resolve the evidence in favor of the verdict ( Drake v. State, 241 Ga. 583, 585 ( 247 SE2d 57 )), and to resolve any doubt or ambiguity in favor of the verdict, for the presumption is that if there is any doubt as to the construction of the evidence, the jury resolved it in fashioning the verdict.
cited Cited as authority (rule) Kilgore v. State
Ga. Ct. App. · 1986 · confidence medium
Drake v. State, 241 Ga. 583, 585 ( 247 SE2d 57 ) (1978), cert. denied, 440 U. S. 928 (99 SC 1265, 59 LE2d 485) (1979); Thomas v. State, 175 Ga. App. 873 (1) ( 334 SE2d 903 ) (1985).
cited Cited as authority (rule) Collins v. State
Ga. Ct. App. · 1985 · confidence medium
Drake v. State, 241 Ga. 583, 585 (247 *638 SE2d 57) (1978), cert. denied, 440 U. S. 928 (99 SC 1265, 59 LE2d 485) (1979); it suffices here. 2.
discussed Cited as authority (rule) Thomas v. State (2×) also: Cited "see"
Ga. Ct. App. · 1985 · confidence medium
Drake v. State, 241 Ga. 583, 585 ( 247 SE2d 57 ) (1978), cert. denied, 440 U. S. 928 (99 SC 1265, 59 LE2d 485) (1979).
cited Cited as authority (rule) Pennyman v. State
Ga. Ct. App. · 1985 · confidence medium
Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978); McBowman v. Merry, 104 Ga. App. 454, 456 (1) ( 122 SE2d 136 ) (1961).
examined Cited as authority (rule) Henry Arthur Drake v. Ralph Kemp, Warden (3×)
11th Cir. · 1985 · confidence medium
Drake v. State, 241 Ga. 583 , 247 S.E.2d 57, 60 (1978).
discussed Cited as authority (rule) Henry Arthur Drake v. Robert O. Francis (2×)
11th Cir. · 1984 · confidence medium
The court stated that “the presence of the jury during such arguments [does] not bring the argument within the scope of Hawes , though it would be preferable if such argument were conducted outside of the jury’s presence.” Drake v. State, 241 Ga. 583, 587 , 247 S.E.2d 57, 60 (1978).
discussed Cited as authority (rule) Meeker v. State
Ga. · 1982 · confidence medium
“The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.” Drake v. State, 241 Ga. 583, 586 (3) ( 247 SE2d 57 ) (1978).
cited Cited as authority (rule) Berry v. State
Ga. · 1981 · confidence medium
Williams v. State, 222 Ga. 208, 220 ( 149 SE2d 449 ) (1966).” Drake v. State, 241 Ga. 583, 586 ( 247 SE2d 57 ) (1978).
discussed Cited as authority (rule) Zant v. Campbell
Ga. · 1980 · confidence medium
The state argues however, that the district attorney did not in fact read the cited passages to the jury, but rather, read them to the judge in the presence of the jury and that, therefore, under this court’s holding in Drake v. State, 241 Ga. 583, 587 ( 247 SE2d 57 ) (1978), said reading was not error under the due process clause of the Fourteenth Amendment.
cited Cited as authority (rule) Godfrey v. State
Ga. · 1979 · confidence medium
Drake v. State, 241 Ga. 583, 585 ( 247 SE2d 57 ) (1978); Campbell v. State, 240 Ga. 352, 354 ( 240 SE2d 828 ) (1977).
discussed Cited as authority (rule) Ruffin v. State
Ga. · 1979 · confidence medium
Hawes v. State, 240 Ga. 327 ( 240 SE2d 833 ) (1977); Campbell v. State, 240 Ga. 352 ( 240 SE2d 828 ) (1977); Presnell v. State, 241 Ga. 49, 62 ( 243 SE2d 496 ) (1978); Drake v. State, 241 Ga. 583, 587 ( 247 SE2d 57 ) (1978).
discussed Cited "see" Alvelo v. State (2×)
Ga. · 2011 · signal: see · confidence high
See generally Drake v. State, 241 Ga. 583 (1) ( 247 SE2d 57 ) (1978).
discussed Cited "see" Cody v. State (2×)
Ga. Ct. App. · 1990 · signal: accord · confidence high
Accord Drake v. State, 241 Ga. 583 (3) ( 247 SE2d 57 ) (1978); Thurston v. State, 186 Ga. App. 881 (1) ( 368 SE2d 822 ) (1988). 2.
discussed Cited "see" Hendrixson v. State (2×)
Ga. Ct. App. · 1983 · signal: see · confidence high
See Drake v. State, 241 Ga. 583 (3) ( 247 SE2d 57 ).
discussed Cited "see, e.g." Charles Frank Parham v. State (2×)
Ga. Ct. App. · 2013 · signal: see also · confidence medium
See also Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978).” Lewis v. State, 304 Ga. App. 831, 833 (1) ( 698 SE2d 365 ) (2010).
discussed Cited "see, e.g." Parham v. State (2×)
Ga. Ct. App. · 2013 · signal: see also · confidence medium
See also Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978).
discussed Cited "see, e.g." Sallywhite v. State (2×)
Ga. Ct. App. · 2012 · signal: see also · confidence medium
Our review is limited to determining, as a matter of law, whether the record contains sufficient evidence to support the verdict.” (Punctuation and footnotes omitted.) Celestin, supra, 296 Ga. App. at 727 (1); see also Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978) (an appellate court does not have the discretion to grant a new trial based upon the weight of the evidence).
discussed Cited "see, e.g." Tiffany Sallwhite v. State (2×)
Ga. Ct. App. · 2012 · signal: see also · confidence medium
Our review is limited to determining, as a matter of law, whether the record contains sufficient evidence to support the verdict.” (Punctuation and footnotes omitted.) Celestin, supra, 296 Ga. App. at 727 (1); see also Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978) (an appellate court does not have the discretion to grant a new trial based upon the weight of the evidence).
examined Cited "see, e.g." State v. Kelly (4×)
Ga. · 2011 · signal: see also · confidence low
See also Drake v. State, 241 Ga. 583 (1), 247 S.E.2d 57 (1978) (this Court does not have discretion to grant a new trial when evidence preponderates heavily against verdict; we can only review evidence to determine if any evidence supports verdict).
discussed Cited "see, e.g." Lewis v. State (2×)
Ga. Ct. App. · 2010 · signal: see also · confidence medium
See also Drake v. State, 241 Ga. 583, 585 (1) ( 247 SE2d 57 ) (1978). *834 2.
discussed Cited "see, e.g." State v. Jones (2×)
Ga. · 2008 · signal: see also · confidence low
See also Drake v. State, 241 Ga. 583 (1) ( 247 SE2d 57 ) (1978) (this Court does not have discretion to grant a new trial when evidence preponderates heavily against verdict; we can only review evidence to determine if any evidence supports verdict).
Retrieving the full opinion text from the archive…
Drake
v.
the State
33463.
Supreme Court of Georgia.
Jun 27, 1978.
247 S.E.2d 57
Andrew J. Hill, Jr., Andrew J. Hill, III, for appellant., Bryant Huff, District Attorney, Arthur K. Bolton, Attorney General, Daryl A. Robinson, Assistant Attorney General, for appellee.
Hall, Hill, Divisions.
Cited by 62 opinions  |  Published
Hall, Justice.

Henry Arthur Drake was convicted of the murder and armed robbery of C. E. Eberhart, and sentenced to death for the murder, and to life imprisonment for the armed robbery. This is the direct appeal of these convictions, and the death sentence.

Prior to this trial William Campbell was also convicted of the murder of C. E. Eberhart, and was sentenced to death for the murder, and to life im[*584] prisonment for the armed robbery. The convictions and death sentence of Campbell were affirmed in Campbell v. State, 240 Ga. 352 (240 SE2d 828) (1977). The evidence in Drake’s trial was essentially the same as that in Campbell’s trial.

In the instant case Campbell reluctantly testified against Drake. Campbell had lived with Drake and Mary Caruth in Caruth’s house after he and Drake were released from prison, where they met. The three drove to Colbert in the late afternoon of the day of the offenses, where Campbell got out in front of the victim’s barbershop, and proceeded to get a haircut. According to Campbell’s testimony, Drake entered the barbershop wearing a black wig while Campbell was still in the barber’s chair. Drake was carrying a claw hammer, and struck the victim with it. Campbell protested, telling Drake not to hit "the old man,” at which point Drake struck Campbell with the hammer. Drake continued to struggle with the victim until Eberhart passed out from the blows to his head. The victim was also stabbed.

Eberhart died several months later from the head wounds. Approximately three hundred dollars was stolen.

The state’s case rested largely on Campbell’s testimony, since there was no other direct evidence, and little circumstantial evidence of Drake’s participation in the crime. Campbell’s testimony was impeached by proof of prior inconsistent statements and prior felony convictions. The testimony was corroborated in a variety of particulars by Mary Caruth’s testimony, Drake’s own testimony, and some physical evidence, including a knife found at the scene which matched the description of a knife belonging to Drake.

The victim was over 70 years old, but he was healthy and there was evidence of a tremendous struggle in the barbershop. Campbell was in his sixties, and suffered so severely from asthma and emphysema that he could not exert himself strenously. Drake, on the other hand, was healthy and in his thirties. From this the state argued that Drake must have been the one who actually beat the victim.

Mary Caruth’s testimony in general supported[*585] Drake’s alibi defense that he was at his mother’s house in Colbert at the time of the offense. However, Caruth’s testimony was impeached by prior inconsistent statements. Drake and his mother also testified in support of his alibi.

1. The denial of a new trial by the trial court on the grounds that the verdict of the jury was contrary to evidence and the principles of justice and equity, Code § 70-202; and that the verdict was decidedly and strongly against the weight of the evidence, although there may appear to be slight evidence in favor of the verdict, Code § 70-206, is enumerated as error. We do not have the discretion to grant a new trial on these grounds; we can only review the evidence to determine if there is any evidence to support the verdict. Campbell v. State, supra.

In determining whether there is any evidence to support the verdict we resolve all conflict in the evidence to favor the verdict. Eubanks v. State, 240 Ga. 544, 546 (242 SE2d 41) (1978). The credibility of Campbell’s testimony was for the jury to decide. Code § 38-1805. This testimony was ample to support the denial of a new trial. Campbell v. State, supra, at 355.

2. Appellant also contends that his conviction rested entirely on circumstantial evidence which did not exclude every other reasonable hypothesis except that of guilt. Code § 38-109. We disagree. Campbell’s testimony was direct evidence of Drake’s guilt.

3. A third related contention is that there was no corroboration of Campbell’s testimony, and since he was an accomplice, appellant’s conviction was barred by Code § 38-121. We first note that there is no dispute that Campbell was an accomplice under the state’s theory of the case, and that there was evidence to support this position.

Appellant does not argue that there was insufficient general corroboration of Campbell’s testimony. Rather, he argues the second test, i.e., whether there was "independent corroborating evidence which tends to connect the accused with the crime.” West v. State, 232 Ga. 861, 865 (209 SE2d 195) (1974); Birt v. State, 236 Ga. 815, 825 (225 SE2d 248) (1976). The test is whether the testimony of the accomplice was corroborated by "facts or[*586] circumstances which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty, and more than sufficient to merely cast on the defendant a grave suspicion of guilt.” Price v. State, 208 Ga. 695, 696 (69 SE2d 253) (1952); Smith v. State, 238 Ga. 640, 642 (235 SE2d 17) (1977).

The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime. Williams v. State, 222 Ga. 208, 220 (149 SE2d 449) (1966). Appellant was connected to the crime by the distinctive pocketknife found at the scene which matched the description of appellant’s knife. In addition, it was established without dispute that appellant and Mary Caruth drove Campbell to the barbershop, drove him home with them after the robbery, and later drove him to Atlanta so that he could flee the state even though by that time Drake admittedly knew of Campbell’s involvement in the crimes. This evidence was sufficient corroboration of Drake’s involvement in the crimes. See Birt v. State, 236 Ga. at 825.

4. Appellant alleges that he was denied an impartial jury because of the relationship of a juror to the deceased. During the trial a juror learned for the first time (from his wife) that his wife’s sister’s husband was the victim’s great uncle. [1] This information was made known to the court and counsel, but appellant’s motion to strike the juror was denied when the juror stated that this relationship would not affect him in any way, and that he remained impartial. There was no evidence of any partiality, thus it was not error to deny the motion. The fact that appellant states he would have used a peremptory strike to remove the juror had the relationship been disclosed during voir dire does not change the fact that he had an impartial jury.

[*587] Death Sentence Review

The remaining enumerations of error are best covered in our review of the death sentence under Code § 27-2537 (c) (2).

5. Appellant complains that the argument of the district attorney in the penalty stage resulted in the imposition of the death penalty under the influence of passion, prejudice, and other arbitrary factors. More specifically, the prosecutor read dicta from cases, including Eberhardt v. State, 47 Ga. 598, 609 (1873). This practice was condemned in Hawes v. State, 240 Ga. 327, 336 (240 SE2d 833) (1977), when used for the purpose of persuading the jury to impose the death penalty, but as in Campbell v. State, supra, the prosecutor in this case was addressing not the jury but rather the court. We held in Campbell that the presence of the jury during such arguments did not bring the argument within the scope of Hawes, though it would be preferable if such arguments were conducted outside of the jury’s presence. See also Presnell v. State, 241 Ga. 49, 62 (243 SE2d 496) (1978) (holding that such arguments may be harmless error).

Appellant also complains of a brief reference to Gary Gilmore [2] in the prosecutor’s arguments. We agree that the reference was improper, but it too was made to the trial court. Moreover, this reference was not likely to inflame the passions or prejudices of the jury.

6. We find no error in the trial court’s charge to the jury relating to the sentencing phase of the trial. The appellant’s fourth and sixth enumerations of error are without merit. Spivey v. State, 241 Ga. 477 (1978).

7. After reviewing the entire record and transcript and considering the foregoing enumerations, we conclude that the sentence of death imposed on Henry Arthur Drake was not imposed under the influence of passion, prejudice, or any other arbitrary factor.

The jury found the following statutory aggravating circumstances: (1) "The offense of murder was committed while the offender was engaged in the commission of an[*588] additional capital felony, to-wit: the armed robbery of C. E. Eberhart.” Code Ann. § 27-2534.1 (b) (2). (2) "The offense of murder was outrageously and wantonly vile, horrible, an[d] inhuman in that it involved torture to the victim or depravity of mind on the part of the defendant.” Code Ann. § 27-2534.1 (b) (7). These statutory aggravating circumstances are supported by the evidence.

Argued May 9, 1978 Decided June 27, 1978 Rehearing denied July 20, 1978. Andrew J. Hill, Jr., Andrew J. Hill, III, for appellant. Bryant Huff, District Attorney, Arthur K. Bolton, Attorney General, Daryl A. Robinson, Assistant Attorney General, for appellee.

8. In reviewing the death penalty in this case, we have considered the cases appealed to this court since January 1, 1970, in which a death or life sentence was imposed for murder, and we find the similar cases listed in the appendix support affirmance of the death penalty.

Henry Drake’s sentence to death for murder is not excessive or disproportionate considering both the crime and the defendant. Code Ann. § 27-2537 (c) (3). The verdict is factually substantiated.

Judgment affirmed. [3]

All the Justices concur, except Hill, J., who also concurs, except that he does not concur in all that is said in Divisions 1 and 6 of the opinion.

[*589] Appendix.

Gregg v. State, 233 Ga. 117 (210 SE2d 659) (1974); Moore v. State, 233 Ga. 861 (213 SE2d 829) (1975); Floyd v. State, 233 Ga. 280 (210 SE2d 810) (1974); Jarrell v. State, 234 Ga. 410 (216 SE2d 258) (1975); Mitchell v. State, 234 Ga. 160 (214 SE2d 900) (1975); Berryhill v. State, 235 Ga. 549 (221 SE2d 185) (1975); Dobbs v. State, 236 Ga. 427 (224 SE2d 3) (1976); Goodwin v. State, 236 Ga. 339 (223 SE2d 703) (1976); Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976); Birt v. State, 238 Ga. 402 (233 SE2d 362) (1976); Pryor v. State, 238 Ga. 698 (234 SE2d 918) (1977); Young v. State, 239 Ga. 53 (236 SE2d 1) (1977); Corn v. State, 240 Ga. 130 (240 SE2d 694) (1977); Campbell v. State, 240 Ga. 352 (240 SE2d 828) (1977).

1

Appellant does not contend the juror was disqualified under the relevant statutes. See Code §§ 59-716, 59-804 (4).

2

Gilmore was the first person executed in the United States since revised death penalty statutes were enacted.

3

Including the cases decided today there have been 74 capital felony cases in which the death penalty was imposed and reviewed by this court pursuant to the Georgia Death Statute. 53 have been affirmed and 21 have been reversed by this court. With respect to race, the cases involved 31 defendants who were white and 43 who were black. Of the 21 cases reversed, 8 were white and 13 were black. 5 of the 53 affirmed cases were reversed by the Supreme Court of the United States.