Whittington v. State

Weltner, Justice,

dissenting.

I dissent to Division 9 of the majority opinion, and to that *181portion of the judgment vacating the sentence of death.

The majority states: “Although both were parties to the crime, OCGA § 16-2-20 (Code Ann. § 26-801), and although the defendant was motivated by Soto, she was not acting as Soto’s ‘agent’ as intended by this aggravating circumstance; i.e., the defendant was not hired by Soto. See Castell v. State, 250 Ga. 776, 794 (301 SE2d 234) (1983). Therefore, the penalty of death cannot be upheld on this aggravating circumstance.” (Opinion, p. 178)

I respectfully suggest that Castell properly must be understood as the converse of the proposition for which it is cited by the majority. “We hold that the terms ‘agent’ and ‘employee,’ as used in OCGA § 17-10-30 (b)(6) (Code Ann. § 27-2534.1) . . . should be given their common, everyday meanings: An employee is one who is hired by another and an agent is one who acts for another.” 250 Ga. at 794.

The factual recitation contained in the majority opinion leads, inevitably, I believe, to the conclusion that Whittington was at all times material “one who acts for another.” She must, therefore, come within the meaning of (b)(6) — unless the agency contemplated therein must be limited solely to acts undertaken on behalf of another for monetary gain. That cannot be, however, in view of the inclusion in the statute of subsection (b)(4), relative to the commission of murder “for the purpose of receiving money or any other thing of monetary value.” OCGA § 17-10-30 (b)(4) (Code Ann. § 27-2534.1).

I am authorized to state that Presiding Justice Marshall and Justice Bell join in this dissent.