BRITTEN v. THE STATE
22938
Supreme Court of Georgia
May 31, 1965
Rehearing Denied June 14, 1965
221 Ga. 97
CANDLER, Justice
The bill of exceptions, among other things, excepts to the judgment sustaining the general demurrer that attacked the petition because it failed to set forth a cause of action for recovery of damages, because of Mrs. Perkins’ mismanagement of thе estate of Alonza Perkins and for breach of the bond given by her as administratrix cum testamento annexo. This petition merely recited the acts of fraud and mismanagement of the estate of Alonza Perkins on the part of Mrs. Perkins, including the fact that she gave an administrator‘s bond in the sum of $1,000 when the value of the estate was $20,000, as illustrative of the alleged conspiracy between Mrs. Perkins and Harmon Perkins to conceal the assets of the estate of Alonza Perkins, confusе them with the personal assets of Mrs. Perkins and eventually channel them through Mrs. Perkins’ will into the possession of Harmon Perkins, so as to wrongfully deprive the plaintiff of his share of the remainder estate devised and bequeathed to him in the will of Alonza Perkins. There was no attempt to sue on the bond, none of its provisions being set out in the petition, nor for damages caused by the conduct of Mrs. Perkins, there being in the petition no allegation of a right to recover damages and no prayer for damages.
The sustaining of the demurrers on these grounds was harmless error.
Judgment reversed. All the Justices concur.
22938. BRITTEN v. THE STATE.
ARGUED MAY 10, 1965-DECIDED MAY 31, 1965-REHEARING DENIED JUNE 14, 1965.
W. B. Skipworth, Solicitor General, Eugene Cook, Attorney General, J. R. Parham, Assistant Attorney General, contra.
CANDLER, Justice. Earnest Britten was indicted in Muscogee County for the murder of James Lee McBride. When his case was called for trial, he waived formal arraignment, copy of the indictment, list of the witnesses sworn against him before the grand jury and enterеd a plea of not guilty. He was convicted of murder without recommendation and was sentenced to be electrocuted. His amended motion for a new trial was overruled and he excepted to that judgment.
1. The first special ground of the motion for new trial alleges that the court, on motion therefor, erred in refusing to continue movant‘s case. This motion was made before arraignment. The same ground also alleges that the court erred in refusing, after the Statе had introduced its evidence and rested, to grant defendant‘s motion for a mistrial and a continuance of the case. These motions were based on the ground that one of his attorneys was absent. Respecting this, the record shows: The court appointed J. Gordon Young, Owen G. Roberts, Jr. and L. W Grogan, three members of the Columbus Bar, to represent the accused. Neither was appointed “leading counsel.” They are all capable and experienced lаwyers. At a term of the court prior to the one at which the accused was tried, the court on motion therefor, continued the case to give counsel ample time for trial preparation. When the case was regularly called for trial, Mr. Roberts was trying another case in the civil division of the same court and for that reason could not assist other counsel in the trial of this case. The motions for continuance and mistrial were based solely on his absenсe. The record, however, shows that Mr. Jack M. Thornton, Mr. Roberts’ law partner, was present for the purpose of assisting in the trial, and that he did actively aid in the trial. Applications for continuance are addressed to the sound legal discretion of the court, and, if not expressly provided for, shall be granted or refused as the ends of justice may require.
2. Another special ground of the mоtion alleges that a new trial should be granted movant because the solicitor general on
3. “When any person shall stand indicted for a felony, the court shall have impaneled 48 jurors, 24 of whom shall be taken from the two pаnels of petit jurors from which to select a jury. . . .”
4. When the State concluded the introduction of evidence and rested, counsel for the accused announced that he would also rest. At this time the solicitor general asked the court to reopen the case and allow him to introduce two other witnesses, namely, Cobb Britten, Jr. and Cobb Britten, Sr. whose tеstimony, as he stated to the court, had been overlooked by him. His request was granted over objection by the accused that the State had rested its case and the introduction of further evidence by the State would be improper for stated reasons. His objection was overruled and the witnesses were allowed to testify. The witness Cobb Britten, Jr. testified that he and his brother Earnest Britten while drinking heavily agreed with each other to rob the Beverage Vault Package Store in Cоlumbus, Georgia, which the deceased was operating; that he (Cobb, Jr.) pushed the deceased into a back room of the liquor store; that his brother Earnest got out his knife and went into the room where McBride was; that he tried to open the cash register but was unable to do so and his brother Earnest brought McBride back into the main room of the store to open the cash register; that his brother then pushed McBride back into the rear room of the liquor store; that he could hear fighting and stumbling in the back room but he did not know McBride was stabbed until he looked back there and
5. While Robert L. Knox, а detective for the City of Columbus, was being directly examined, he was asked by the solicitor general if he told the defendant when taken into custody that he was under investigation for the robbery and murder which occurred at the Beverage Vault Package Store in Columbus, Georgia. The witness replied: “Yes, sir-the first word that was said after he got in the car-he said: ‘I shouldn‘t have run in the first place. I should have known I would have got caught eventually.’ That‘s when I told him I said ‘we should wait until we get to Columbus before we talk about it; well, you are in serious trouble; we‘ve picked you up on an auto theft warrant; you are also going to be held for investigation of robbery and murder at the Beverage Vault Package Store on 4th Avenue.‘” Immediately after this answer was given, counsel for the accused moved for a mistrial on the ground that the State had by that portion of the evidence concerning a charge against the accused for auto theft, put his character in evidеnce when he had not elected to do so. The solicitor general then stated to the court that he did not contend that the accused was guilty of auto theft and the court instructed the jury to ignore the witness’ reference to the charge of auto theft against the accused and to confine its consideration to the offense for which he was then on trial. Since that portion of the witness’ testimony which tended to show that the defendant was charged with auto theft wаs not in response to the question propounded to him by the solicitor general and since the trial judge instructed the jury to ignore it and to confine its consideration to the offense charged against the accused, we cannot hold that the court erred in overruling the defendant‘s motion for a mistrial. As authority for this ruling, see Burns v. State, 191 Ga. 60 (9), 74 (11 SE2d 350); Carrigan v. State, 206 Ga. 707 (3) (58 SE2d 407); and the cases there cited.
As to the written statement of the accused, Knox testified: It took about two hours to drive from Franklin to Columbus. The accused was repeatedly advised during that time that he had better get him a lawyer before he made any statement. He continued to say that he was guilty of the robbery but not of the murder and for that reason he did not need a lawyer. Within two or three hours after the accused was returned to Columbus and as soon as it could be reduced to writing, the accused signed a statement in which he аdmitted his participation in the robbery at the Beverage Vault Package Store but denied that he aided or assisted his brother in killing McBride.
In his unsworn statement to the jury the accused said that he was 22 years old and that he recalled the occasion when he and his brother were “in this difficulty at the liquor store.” He also told the jury that he tried, at his brother‘s direction, to open the cash register in the store but was unable to do so; that he picked up McBride‘s pistol from the floor of the liquor store and put it in his pocket; and that he did not aid or assist his brother, Cobb Britten, Jr., in killing McBride. After concluding his statement to the jury and in response to a question propounded to him by one of his attorneys, he said that he asked for a lawyer immediately after he was turned over to officers Knox and Featherston in Franklin, Georgia-that he asked them at that time to call his father so he could secure a lawyer for him; and that they told him they would get him a lawyer after he had given them a stаtement. In response to another question propounded to him by one of his attorneys, he said that he was involved in the robbery but did not aid or assist
Since the defendant, in answer to questions propounded to him by one of his attorneys after he had concluded his statement to the jury, admitted that the oral statement and the written admission which he had made to officers Knox and Featherston were freely and voluntarily made, we hold that the trial judge did not err, as contended, in allowing them in evidence; and this is especially true since the court in its charge instructed the jury that it could consider the oral statement and the written admission only if it found that they were freely and voluntarily made by the accused. In the circumstances of this case a ruling different from the one here made is not required by the majority decisions of the Supreme Court of the United States in Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908); Escobedo v. Illinois, 378 U. S. 478 (84 SC 1758, 12 LE2d 977), since the facts in those cases are materially different from those of the case presently before us for decision. Here, unlike the facts in those cases, the defendant in response to questions propоunded to him by one of his attorneys after he had concluded his statement to the jury, freely and voluntarily admitted his involvement in a robbery during the commission of which the homicide of McBride occurred.
7. The general grounds of the motion for new trial are not meritorious. The verdict was amply authorized by the evidence. In Jackson v. State, 219 Ga. 819, 822 (136 SE2d 375), this court, quoting from Gore v. State, 162 Ga. 267 (134 SE 36), held: “Where three persons conspire to rob a merchant in his store, and one of the conspirators remains in an automobile in front of the store, with the engine running, in order that the three may speedily escape from the scene of the robbery, while the other two enter the store, and, in furtherance of the common design to rob, kill the merchant intended to be robbed, such killing is the probable consequence of the unlawful design to
Judgment affirmed. All the Justices concur, except Almand, J., who dissents.
ALMAND, Justice, dissenting. I dissent from the ruling in Division 6 and the judgment of affirmance. In my opinion the decision of the Supreme Court of the United Statеs in the case of Jackson v. Denno, 378 U.S. 368 (84 SC 1774, 12 LE2d 908) is controlling and that decision requires a ruling to the contrary. That case involved the procedure in the State of New York for the determination of the voluntariness of a confession, which procedure is in all respects similar to the Georgia procedure, and is the procedure which was followed in the case at bar. In that case it was held: “It is now axiomatic that a defendant in a criminal case is deprived of due process оf law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L.Ed.2d 760, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401 (65 S. Ct. 781, 89 L.Ed. 1029); Stroble v. California, 343 U.S. 181 (72 S. Ct. 599, 96 L.Ed. 872); Payne v. Arkansas, 356 U.S. 560 (78 S. Ct. 844, 2 L.Ed.2d 975). Equally clear is the defendant‘s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra. In our view, the New York procedure employed in this case did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial, did not adequately protect Jackson‘s right to be free of a conviction based upon a coerced confession and there-
The majority opinion seeks to distinguish this case from Jackson v. Denno on the ground that the defendant in his statement to the jury freely admitted his participation in the offense and there was no evidence to controvert the evidence on the part of the State that the confession was freely and voluntarily made. The reply to this is that the trial judge submitted the question of voluntariness to the jury and the jury was permitted to consider the voluntariness of the confession not separаte and apart from the consideration of the other evidence and rendered one verdict on the guilt or innocence of the defendant. In holding this not permissible the court in Jackson v. Denno said: “As we have already said, Jackson is entitled to a reliable resolution of these evidentiary conflicts. If this case were here upon direct review of Jackson‘s conviction, we could not proceed with review on the assumption that these disputes had been resolved in fаvor of the State for as we have held we are not only unable to tell how the jury resolved these matters but even if the jury did resolve them against Jackson, its findings were infected with impermissible considerations and accordingly cannot be controlling here. Cf. Rogers v. Richmond, supra. Likewise, a federal habeas corpus court, in the face of the unreliable state court procedure, would not be justified in disposing of the petition solely upon the basis of the undisputed portions of the record.” P. 392.
As to the disposition of the case, I would follow the procedure suggested in Jackson v. Denno, viz., reverse the trial court with direction that it impanel a jury, as required in a capital felony case, for the sole purpose of determining whether the alleged confession was or was not voluntarily given, and if the evidence makes a prima facie case of being voluntary to admit it for consideration of the jury and submit the question of voluntariness, with proper instructions, to the jury, if the jury finds that it was voluntarily given the judgment denying a new trial be affirmed, but if either the judge or the jury finds it was not voluntarily given, the judgment denying a new trial be reversed. See