171 Ga. 596 | Ga. | 1930
Will Biggers was tried upon an indictment charging him with the murder of Prank Marlin by shooting him with a pistol. The jury returned a verdict of guilty, without a recommendation.
When the case was called for trial, and before the prisoner was arraigned, he filed a motion for a change of venue, and for a continuance. The motion for a change of venue was based upon the ground that an impartial jury could not be obtained to try the defendant at the time and place when and where the case was called for trial, for the following reasons: (a) That the jurors selected to try him will have to be taken from the panels drawn and empaneled on November 4, 192-9. (b) That on November. 5, 1929,
'“"Will Biggers, negro escaped convict, confessed slayer of Frank Marlin, a railroad engineer, will go on trial for his life before a jury in Judge Edgar E. Pomeroy’s division of the Fulton superior court this morning. It will be the second trial for Biggers, the jury in the first case failing to reach a decision on punishment to be meted out. In the first trial, three weeks ago, it was reported that two of the twelve jurors voted for a life sentence for Biggers, while the remaining ten were for the death penalty. Marlin was slain on September 7th, while walking through a wooded area near an abandoned reservoir at the west end of Parson Street. Biggers was arrested two days after the killing, and immediately confessed to detective John W. Lowe, who will be the State’s chief witness at the trial beginning today.”
Counsel for the accused, in support of the motion, offered to introduce in evidence testimony of members of .the jury on a former trial of the case, as to how the jury stood regarding their verdict on the trial; and counsel asked the court to allow him
The court did not err in overruling the motions for a change of venue and for a continuance. In passing upon both of these motions the court exercised a sound discretion, and it does not appear that that discretion was abused. The publication of the article in a- newspaper of wide circulation in the county and the State did not require a finding upon the part of the court that an impartial jury could not be obtained at the time of the trial, that is, on November 5, 1929, a short time after the article in the newspaper referred to was published. And it was not error for the court to refuse to hear evidence offered to show that the former jury were divided upon the question as to whether or not the defendant should be recommended to mercy. The jury trying this case were not concerned with the opinion of the jury that had passed upon the question of the guilt or innocence of the defendant at the first trial. There was no competent proof offered to show that there was prevailing in the county such general excitement and prejudice against the prisoner as would require the case to be postponed to a subsequent date. In the selection of a fair and impartial jury the prisoner was protected by his right to peremptory challenges, and to have the statutory voir dire questions propounded; and if these were not sufficient, the prisoner had his right of challenge to the poll and to have had any juror called to try him put upon the court as a trior and the question of such juror's competency and impartiality thoroughly tested.
Error is assigned upon the following charge of the court: “In this case the State contends, which the defendant denies, that the defendant made statements amounting to a confession. It will be for you to determine, from the testimony and the defendant’s statement, whether such defendant made an admission amounting to a confession. You will determine this from the testimony in the case and from defendant’s statement.” While the defendant had not actually denied making a confession, he had in his statement substantially claimed that the confession introduced in evidence had not been freely and voluntarily made; and it would have been more accurate if the court had stated to the jury that the defendant denied making a voluntary confession. But the omission of the word “voluntary” here will not be cause for the grant of a new trial. The charge complained of, for the reason pointed out, is not entirely accurate; but it could not have been “misleading or confusing to the jury,” as claimed by the movant; 'especially as the court charged further, in this connection: “I instruct you that to make a confession admissible in evidence it must have been
The court charged the jury in part as follows: "I instruct you, if you find that this accused set out or started out to rob the deceased, and that during such robbery, if he did rob him or attempt to rob him, the deceased was killed by the accused in the manner set forth in the indictment, and if you find any such killing was the natural, reasonable, and probable consequence of any such robbery, or attempt at robbery, then I instruct you that under such circumstances you would be authorized to convict the defendant of the offense of murder.” This charge is excepted to upon the ground that it is "calculated to mislead and did mislead the jury, for the reason that same is not a true statement of the law, for the reason that if at any time during an attempt.to commit robbery he abandons the design and intent to commit such robbery, and kills in self-defense or under circumstances of justification or mitigation, he would not be guilty of murder.” The charge is not error for any reason assigned. There was no evidence to show that at any time during the attempt upon the part of the defendant to commit robbery, "he abandoned the design- and attempt -to commit such robbery and killed in self-defense or under circumstances of justification or mitigation.”
In the sixth ground of the motion plaintiff in error insists that a new trial should be granted him for the reason, that, while the assistant .solicitor-general was arguing the case for the State he said: "It would be useless to convict this man and recommend the accused to the mercy of the court with any assurance that he
The contention that there is not sufficient evidence in the case to corroborate the alleged confession of movant, and that for this reason a new trial should be granted, is without merit. There was evidence to authorize the conviction, and the confession in the case was amply corroborated.
Judgment affirmed by operation of law.