Burley v. State, 158 Ga. 849

158 Ga. 849 | Ga. | 1924

Lead Opinion

Hines, J.

1. The court below charged the jury as follows: “He says, in the first instance, that he was enraged at the conduct of his wife, Rosa Lee Burley; that she had made certain statements to him with reference to her being kept by other men, and that she would not return to him; that they together with him would have to provide a support for her. He contends further outside of this outrage.” The defendant excepts to this charge, on the ground that he did not make the statement and contention attributed to him by the judge therein. The judge approved this ground with-the following statement: “The theory set out therein was by counsel for defendant presented to the jury in their argument.” Held:

(а) It is error for the trial judge to tell the jury that the defendant, who is charged with the murder of his wife, “says, in the first instance, that he was enraged at the conduct of his wife,” when it does not appear either from the evidence or Ms statement that he made any such statement or contention. This is so for the reason that the judge should not give to the jury an instruction not warranted by the evidence in the case or the statement of the defendant. Rooks v. State, 119 Ga. 431 (46 S. E. 631); Shannon v. State, 147 Ga. 172 (93 S. E. 86); Taylor v. State, 155 Ga. 785, 787 (118 S. E. 675).

(б) The fact that the theory set out in the above instruction was presented by counsel for the defendant in their argument to the jury did not justify the court in giving this instruction. Horton v. State, 120 Ga. 307 (47 S. E. 969); Tanner v. State, 145 Ga. 71 (88 S. E. 554); Key v. State, 21 Ga. App. 300 (94 S. E. 283). We would not, however, for this reason alone grant a new trial.

2. The trial judge gave the jury this instruction: “I charge you, gentlemen, that upon proof of the killing the law presumes both malice and motive.” The defendant excepts to this charge, on the grounds: (a) that it is an incorrect statement of the law; (6) that motive is a substantive fact which must be proved, and is not presumed as a matter of law; and (c) that it is an expression of opinion by the judge that motive had been proved. Held:

(a) Where the evidence adduced by the State presents two conflicting theories of fact, one based upon evidence showing the commission of the homicide without circumstances of justification, mitigation, or alleviation, thus indicating malice, and the other upon the proved statement of the defendant that he shot the deceased because she had a knife and was coming upon him, from which an inference might be drawn by the jury which negatived the existence of malice, it became a question of fact, to be determined by the jury, as to which one of these inconsistent theories was in accord with the real truth of the occurrence; and in such a ease it would be proper for the trial judge to instruct the jury, that the law presumes every homicide to be malicious, until the contrary appears from circumstances of alleviation, excuse, or justification, and that it would be incumbent on the defendant to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him. Mann v. State, 124 Ga. 760 (53 S. E. 324, 4 L. R. A. (N. S.) 934); Warren v. State, 140 Ga. 227 (78 S. E. 836).

No. 4348. September 20, 1924.

(6) This case presenting the two conflicting theories of fact, above mentioned, the above instruction, without qualification or explanation to the effect that the law presumes every homicide to be malicious, until the contrary appears from circumstances of alleviation, excuse, or justification, and that the burden of rebutting such presumption would not rest upon the defendant where circumstances of alleviation, excuse, or justification appeared from the evidence adduced against him by the State, was erroneous. Surles v. State, 148 Ga. 537 (97 S. E. 538).

3. The defendant assigns error upon the failure of the judge “to charge the law of manslaughter,” on the ground that it was demanded by the evidence and the statement of the defendant. Held, that this is too vague and indefinite an assignment of error to raise any question for decision by this court. Wilson v. State, 156 Ga. 42 (118 S. E. 427).

4. The defendant complains that “the trial judge failed to charge the jury upon the law of accident, which was demanded by the evidence and the statement of the defendant, and the failure of the trial judge to charge upon the law of accident deprived this defendant of his legal right before the jury trying said case.” Held, that a charge upon this subject was not required, either under the evidence or the statement of the defendant, and the court did not err in failing to charge upon the theory of this homicide being committed by misfortune or accident.

Judgment reversed.

All the Justices concur, Gilbert, J., specially. L. D. McGregor, B. W. Ware, J. G. Davis, and J. P. Wilhoit, for plaintiff in error. George M. Napier, attorney-general, M. L. Felts, solicitor-general, and T. B. Gress, assistant attorney-general, contra.

---

Concurrence Opinion

Gilbert, J.,

concurs in the judgment of reversal, based on the ruling in the second headnote, but dissents from the ruling made in the first headnote. In the first headnote this court rules that the trial judge erred in stating, as a part of the charge to the jury, that the defendant “says, in the first instance, that he was enraged at the conduct of his wife,” the criticism being upon the use of the word “enraged,” it being contended that the accused did not make the statement and contention that he was “enraged” at the conduct of his wife, and that the statement was not authorized, either by the statement of the accused or the evidence. The judge, in approving this ground of the motion made a notation that “the theory set out therein was by counsel for defendant presented to the jury in their argument.” The writer of this dissent, however, cannot concede that this ground of the motion shows reversible error, if error at all. “The object of all legal investigation is the discovery of truth.” Penal Code (1910), § 1008. The defendant, in his statement to the jury, outlined at great length and detail statements by his deceased wife to him, showing her wanton conduct with other men in open and utter disregard of the feelings of her husband. If the statement of the accused was truthful, if the wife did state to him the facts so detailed, her conduct could not be properly characterized as other than an “outrage,” as stated by the court, and the husband could not have been, as a normal human being, other than “enraged.” Moreover, the statement by the accused to the jury, in the respect named, could not conceivably have been intended for any other purpose tnan to convince the jury that the conduct of the wife was an “outrage,” and that the accused was “enraged.” If this was not the purpose, then there was no intelligent purpose on the part of the accused in making the statement. It could not have been useful to the accused upon any other basis, and it should not be 'supposed that it was merely thrown into the statement of the accused for the purpose of bewildering court and jury and so mystifying the issues as to be misleading. Furthermore, the note of the judge shows that the term used in the charge was authorized by the argument of counsel for the accused in addressing the jury. For my part I am wholly unable to draw any distinction between what the court was authorized to charge, based on argument of counsel addressing the court, from what the court would be authorized to charge, based on counsel addressing the jury. It would seem, and has always been the theory of this writer, that it requires judge and jury and also counsel for both sides who are officers of the court, to complete the entire court machinery for the trial of a contested criminal case. The accused is bound by the sayings of his counsel. I can see no distinction as to the conclusion legally to be drawn by the judge, depending upon whether the counsel is actually facing the judge or facing the jury, or both or neither. All that counsel may say in argument is under the supervision of the court, and must be addressed as well to the judge as the jury, notwithstanding the fact that it is within the province of the jury to determine the facts. It seems to me that it is drawing the distinction entirely too -fine to say that the court is authorized to base a charge on what counsel said “addressing” the judge, but that such a charge cannot be based on argument of counsel when his side or his back is turned to the judge and he is pressing an argument on the facts especially to the jury.

The case of Horton v. State, 120 Ga. 307 (supra), is cited for the ruling made by the majority. That case was by a divided court, and is not controlling. Tanner v. State, 145 Ga. 71 (supra), is also cited. In that case it was held that the evidence required a charge on voluntary manslaughter. The refusal to charge the law of voluntary manslaughter was made a ground of the motion for a new trial. To this ground of the motion the court appended the following certificate: “During the trial of this defendant the court called counsel representing him to the stand, and asked them to inform the court whether or not they considered manslaughter in this case, and whether they desired the court to charge on this grade of homicide,” one of the counsel for the accused having argued that the defendant was absolutely justified, and the other counsel for the accused having stated to the jury that the court might charge on manslaughter, but took the position that the homicide was justifiable. In the conference with the court defendant’s counsel insisted that the homicide was justifiable, “and that they did not ask, and refused to request the court to charge manslaughter. While the court was of the opinion that this grade of homicide was not included, and so told defendant’s counsel, still it offered to charge the same if defendant’s counsel would consent or request it. This was refused.” Because of the facts here stated the court did not charge on the subject of voluntary manslaughter. This court, in construing the note of the trial judge, said: “We do not understand from the court’s certificate that there was any statement or request by counsel to refrain from charging the law of voluntary manslaughter. When court inquired of counsel, in view of their argument before the jury, whether the jury should be instructed on the law of voluntary manslaughter, they replied that they did not ask for such instruction. This was tantamount to saying that they insisted upon the legal right of their client, and it was for the court to determine the propriety of making such an instruction. If defendant’s counsel had assured the court that a. charge upon the subject of voluntary manslaughter was neither applicable nor desired, it would not be ground for reversing the judgment, although under some of the evidence that phase of homicide was presented.” The judgment in this ease was concurred in by all the Justices, and the ruling is binding now upon this court. Properly construed, the ruling is simply to the effect that where there is evidence requiring a charge on the subject of voluntary manslaughter and the court inquires of counsel for the accused if such a charge is desired or requested, and counsel refuse to request one way or the other, the court must charge the jury on all the theories presented under the evidence in the case. The suggestion of the Justice of this court who wrote the opinion, that the utterances by counsel for the accused in the consultation with the trial judge were tantamount to saying that they insisted upon the legal right of their client, and that it was for the court to determine upon the propriety of making such an instruction, is not a direct ruling that this is the proper course to be pursued.

For my part I am of the opinion that attorneys in criminal, as well as civil cases, whether representing the State or the defendant in a criminal case, or either party in a civil case, being officers of the court, owe a duty to aid the court in ascertaining the truth, and accordingly they are bound to exercise the utmost frankness and fairness in indicating their contentions to the court, so that the same may be fairly presented, based on a knowledge directly obtained from the parties or their attorneys of the precise comtentions respectively made in the case. To do otherwise, to remain silent when the court desires, as it must in all cases, to ascertain and to know accurately the contentions of parties, is in many instances to lay a trap. It is to take a chance of obtaining a favorable verdict and, failing to do so, to obtain the benefit of an intentional plan, even if a plan of silence, to show reversible error on the part of the court which would not have occurred had there been a full disclosure of the contentions of the parties. Thus a resubmission of the ease may be required which might have been avoided by a full disclosure duly and frankly made. This is not my conception of the proper administration of justice. It is rather a miscarriage of justice. The administration of justice is not a game-of shrewd or mystifying deceptions or Camouflaged maneuvers. The canons of ethics of the American Bar Association, which have been adopted by the Georgia Bar Association, embrace the matured judgment of the great body of highly honorable American lawyers. In part these canons contain the following statement: “The conduct of the lawyer before the court and with other lawyers should be characterized by candor and fairness.” And as further indicating the principles of candor the canons of ethics further provide: “A lawyer should not offer evidence which he knows the court should reject, in order to get the same before the jury by argument for its admissibility, nor should he address to the judge arguments upon any point not properly calling for determination by him. Neither should he introduce into an argument, addressed to the court, remarks or statements intended to influence the jury or bystanders. These and all kindred practices are unprofessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the administration of justice.” Report of Georgia Bar Association 1916, pp. 413, 414. In the form of oath approved by the American Bar Association, and also the Georgia Bar Association, is included the following: “I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law.” This is the high ground deliberately chosen by the American lawyer, and is to his everlasting credit. It looks to the public good and to the discovery of truth — “the object of all legal investigation.” No criticism is intended of the attorneys in this case. None is due them. What is here said on the subject of candor with the court is deemed proper because, in the opinion of the writer, the ruling made by the court is very likely to unintentionally lead to a course of action in the practice of our noble profession which, unless protested, will result in a conception far inferior to that contained in the canons of ethics adopted for the guidance of American lawyers.