Cooper v. State

There was not fatal variance between the indictment and the proof at trial, even though the indictment alleged that the victim died from choking, while the expert testimony at trial showed that the victim died from smoke and soot inhalation, because the choking directly and materially contributed to his death by smoke and soot inhalation.

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The grand jury indicted Clifford Cooper for malice murder, felony murder, burglary, robbery and arson. The jury found him guilty of felony murder, burglary and robbery. The trial court entered judgments of conviction and sentenced him to life imprisonment for felony murder, and to two five-year terms for burglary and robbery, which are concurrent with each other, but consecutive to the life sentence. Cooper appeals after the denial of a motion for new trial. 1. Construed most strongly in support of the verdicts, the evidence shows that Cooper and John McCoy went to the house of 71-year-old Charlie Johnson, Sr., to rob him. They kicked in the door of the house, and assaulted Johnson. As McCoy beat and choked Johnson, Cooper stole his wallet and ran out of the house. A short time later, he told a friend that McCoy was choking the man to death. Johnson lost consciousness, and McCoy then set the house on fire to destroy what he thought was a dead body. The medical examiner testified that Johnson had neck injuries, including a broken neck bone, but was still alive prior to the fire, and died from smoke and soot inhalation or carbon monoxide poisoning. The evidence was sufficient to enable a rational trier of fact to find Cooper guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia , 443 U. S. 307 99 SC 2781, 61 LE2d 560 1979.

2. Cooper contends that the trial court should have directed a verdict of acquittal as to the felony murder charge because there was a fatal variance between the allegations in the indictment and the proof at trial. The felony murder count of the indictment alleged that Cooper and McCoy, while in the commission of the felony of aggravated assault, caused the victim’s death by beating and choking him. However, expert testimony showed that the cause of death was not beating and choking, but was smoke and soot inhalation.

Cooper v. State

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