163 Ga. 186 | Ga. | 1926
Lead Opinion
Atkinson Ethridge and Grover Ethridge were jointly indicted for the murder of Eloyd Malone and Prank Tucker, by shooting them with a gun and pistol. On the trial the defendants severed, and Grover Ethridge was put upon trial. The State relied for conviction upon circumstantial evidence. The jury returned a verdict of guilty, with a recommendation to mercy; and the defendant was sentenced by the court to serve in the penitentiary for life. He filed a motion for new trial upon the general grounds and 39 special grounds. The motion was overruled, and the defendant excepted.
Error is assigned in the first special ground of the motion for new trial, because the court ruled that one of the jurors was qualified as a juror to serve in the case. “The undisputed evidence showed that the juror’s father’s great-great grandmother was a sister of the grandfather of Prank Tucker, the deceased. Movant respectfully contends that said juror was within the prohibited de
It therefore appears that the juror, who was held to be competent and who was stricken by the defendant, was related within the ninth degree to the deceased. But notwithstanding the fact that the juror was disqualified, the plaintiff in error does not show that he was hurt by reason of the fact that the juror was put upon him. When the plaintiff in error assigns error he must show that he was in some way injured, — that there was injury to him, or an advantage to the State; and no such harm appears here as would require the grant of a new trial. It does not appear that the plaintiff in error had exhausted his strikes. See Doyal v. State, 70 Ga. 134 (2). In Ford v. State, 12 Ga. App. 228 (76 S. E. 1079), it was held: “Although a juror was subject to challenge for cause, on the ground that he was over sixty years of age, yet where it does not appear that the juror served on the panel that tried the accused, or that the accused was compelled, by the overruling of his challenge for cause, to exhaust his peremptory challenges for the purpose of getting rid of the juror, error in holding him competent [was] immaterial.” In -delivering the opinion Judge Hill said: “According to the method of computation of time, under repeated rulings of the Supreme Court of this State, the juror was
Grounds 2, 3, 4, 5, 6, 7, 8, 9, 14, 17, 21, 31, 32, and 33 of the amendment to the motion for new trial will be considered together. These grounds allege error because the court permitted witness M. J. Wood and others to testify as to certain conduct, on the day of the homicide, of Atkinson Ethridge, brother of the plaintiff in error, Grover Ethridge, and jointly indicted with him. This testimony was objected to on the ground that it was irrelevant and prejudicial to the plaintiff in error. The insistence of the State is that the evidence is relevant on the theory that there was a conspiracy between Grover and Atkinson Ethridge to murder the deceased. The plaintiff in error insists that there is no proof, either direct or circumstantial, of the alleged conspiracy, and that the rule as to sayings and conduct of a co-conspirator pending the illegal enterprise has no application to the present ease. Of course, where a conspiracy has been proved to exist, the sayings and conduct of one of the conspirators relative to the criminal undertaking are admissible as against them all (Penal Code, § 1025), and
Grounds 10, 15, 16, 19, 20, 23, and 26 of the motion for new trial allege error because the court permitted the solicitor-general to read to the witness Os Pitts, a transcript from the testimony delivered by him at the commitment trial in this case before Judge Barron, of the county court of Jones County. The testimony read to the witness was as follows: “State whether or not you saw Mr. Grover Ethridge up to Mr. Atkinson Ethridge’s a few minutes after you got to the house? A. Yes, sir. Q. How fast did he appear to be running? A. He gets all it has got all the time; he was running as fast as usual. Q. He was running as fast as he could? A. Yes, sir.- Q. Who was the next person you saw coming up the road? A. Mr. Atkinson. Q. How was he running ? A. About the same; he generally gets all they got. Q. What did he do when he got up there? Did you see Mr. Atkinson get up and go in the house ? A. I met Mr. Grover. Q. Atkinson did get out. A. Yes, sir. Q. What did he do? A. The next thing T saw the cars went back out. Mr. Grover was leading. They left just like they come in, as fast as they could go. Q. Which way did they go? A. The way they come in. Q. From Mr. Stubbs? A. Yes, sir. Q. What time of day was it? A. Between 12 and 1 o’clock I guess. Q. It was after you had come to dinner? A. Yes, sir. Q. You testified to that at the commitment trial? A. Yes, sir.” Movant objected to the solicitor-general reading the above testimony to the witness, on the ground that it was leading, and the statement was expressly made by the solicitor-general that it was not asked for the purpose of impeaching the witness. The court ruled that the solicitor-general would be permitted to read the testimony to the witness and ask questions. It is insisted that this was prejudicial error as against movant; that Os Pitts was clearly in sharp conflict with the testimony delivered by him at the commitment trial; and that the court was without discretion to permit the solicitor-general to lead the witness in the manner described. In a note to this ground the trial judge states that the witness clearly showed that he was a very reluctant witness; and that this also applies to certain other grounds of the motion for new trial in this case. In overruling the motion the trial judge also says: “It will be Seen from the record in said case that the State had to rely principally on unfriendly witnesses to connect
Ground 11 of the motion for new trial alleges error in permitting the solicitor-general to propound to the witness Os Pitts, sworn for the State, and in permitting the witness to answer certain questions, as follows: “Q. Isn’t it true that you have also sworn to the fact that this still was owned jointly by Mr. Grover Ethridge and Mr. Atkinson Ethridge ? A. Yes, sir. I have said that. I have seen them both there. Q. Isn’t it also true that you have testified that Mr. Grover Ethridge brought supplies down to the still, and that he has carried liquor away? A. He has been there on the truck with Mr. Atkinson with the stuff. Whether he brought it — he and Mr. Atkinson came there on the truck. Q. Bringing supplies? A. Yes, sir.” These questions and answers were objected to on the ground that the testimony delivered by the witness upon the commitment trial, or statements made by him prior to the trial, were irrelevant, hearsay, and hurtful to the movant. Eor the reasons given in the preceding division of this opinion it was not error to permit the solicitor-general to ask and the witness to answer the questions propounded. Ground 12 of the motion complains because the court erred in
Error is assigned because the court permitted W. H. Jackson to testify as follows: “Q. By the solicitor-general: Mr. Jackson, what, if anything, did the defendant say with reference to the murder of Grubb ? A. Why, I was just passing and went in the store, didn’t stay there I don’t suppose five minutes; and they were sitting down, and the gentleman with the glasses said that 'Mr. Grubb got what he ought to have got, and said if he had a still and anybody would do it that way, tear it up, he would get the same thing. What the same thing was I don’t know; whether it was a killing or what it was, I could not tell.” This evidence was objected to on the ground that it was irrelevant and immaterial and harmful to the movant, and that it did not illustrate any issue in the case, no evidence showing that a still
Ground 18 of the motion for new trial was not argued by the plaintiff in error, and is considered as abandoned.
Ground 22 of the motion complains because the court erred in permitting the witness L. J. Stevens, called for the State, to testify as follows: “Q. Did you ever threaten Os Pitts, while he was in jail, with the electric chair, or any other punishment? A. Ho, sir. Q. State whether or not any threats were used against this witness, Os Pitts, at any time? A. Hone whatever at any time that we or anybody else talked with him. Q. I will ask you whether or not any threats were used against him? A. Not in my presence there was not.” Movant objected on the ground that the testimony sought to be elicited was wholly irrelevant, immaterial, and prejudicial. Os Pitts had testified: “Shortly after this thing took place they arrested me and about twelve or thirteen more folks; put me in jail in Macon. Several people came to see me there and talked to me about it. They kept hammering at me. They said if I didn’t want to go to the electric chair I had better say this and say the other, because [I] knew who it was and everybody in Jones County knew who it was. That is what they told me. I didn’t know. They got me so flabbergasted I didn’t know what I was saying ‘yes’ to.” We are of the opinion that the evidence objected to here was not inadmissible for the reason assigned, that it was “irrelevant, immaterial, and prejudicial.”
Ground 24 alleges error on the following: “The witness, Lizzie May Pitts, was asked by the solicitor-general, ‘You say, Lizzie May, as you were going down the steps to-day at dinner’— At this point the defendant’s counsel interposed an objection on the ground that it sought to elicit testimony that somebody had approached the witness sometime during the day, and that the
Ground 25 assigns error because the court permitted the witness L. J. Stevens to testify to a conversation which occurred prior to the trial, between him and the witness Os Pitts. Stevens testified that Os Pitts, after talking to him at length about the case, said to Mr. McCommons, “Well, white folks, if I was to tell all I know about this thing, these men would kill me.” Movant contends that said testimony was illegal, irrelevant, and immaterial; and that it was prejudicial to movant, because its effect upon the jury would be that the witness Os Pitts was telling a falsehood on the stand. The burden is on the defendant to show error, and this ground does not come up to that requirement.
Error is assigned in ground 28 of the motion for new trial (there appears to be no 27th ground), because the court permitted the solicitor-general to read to the jury a written memorandum found on Mr. Malone, one of the deceased, as follows: “ Go down on the Garrison road until you come to a negro house just this side of Earnest Ethridge’s house on the left-hand side of the road, and follow this road. Go down the road to Atkinson Ethridge’s, and you will find a road turning to the left at Atkinson Ethridge’s house, and you will come to a spring situated near an oak tree, and follow this branch, and you will find a still which is Atkinson Ethridge’s still.” Movant objected to the reading of the memorandum, on the grounds that it was irrelevant, that there was no proof that the defendant was remotely connected with it,
Error is assigned in the 29th and 30th grounds, because Os Pitts was allowed, over objection by movant, to testify as follows : “ On Sunday morning after the killing on Friday, me and Mr. Atkinson Ethridge went to the place where the still was torn up (referring to the still on Atkinson Ethridge’s place, alleged to have been torn up by the deceased officers on August 28, 1925), and carried off the still a little ways down an old pasture away down on the creek. Mr. Earnest Ethridge came that way after he met us in the ear. He got on the car and went with us down to this place.” This evidence was objected to as irrelevant and prejudicial, and as illustrating no issue in the case, and because it had reference to the act'of an alleged co-conspirator after the completion of the alleged illegal enterprise, etc. As we have indicated in the previous divisions of this opinion, there is sufficient evidence in the record to authorize the jury to infer that a conspiracy had been proved prima facie between Atkinson and Grover Ethridge; and it has been held that the acts and conduct of one accomplice during the pendency of the wrongful act, not only in its perpetration but also in its subsequent concealment, are admissible against the other. So also are the sayings pending the common criminal enterprise. Byrd v. State, 68 Ga. 661; Wall v. State, 153 Ga. 309, 317 (112 S. E. 142); Smith v. State, 148 Ga. 332, 338 (96 S. E. 632); Rawlins v. State, 124 Ga. 31 (12), 46 (52 S. E. 1).
The 34th ground of the motion assigns error on the following charge of the court: “Now the-court charges you, and this is entirely a question for your consideration and your determination, that in the event you are satisfied from the evidence in this case beyond a reasonable doubt that there was a conspiracy, that is an agreement existing between the defendant now upon trial
Ground 36 of the motion complains of the following charge: “That is, under the laws of Georgia, the court charges you that the law authorizes the conviction of a person on circumstantial evidence if the proven facts are consistent with the guilt and inconsistent with innocence of the defendant beyond a reasonable doubt; and you take that principle of law in connection with the other law that the court has read to you, in passing upon the guilt or innocence of the defendant in this case.” It is insisted that this is not a correct statement of the law, and that in effect it puts upon the defendant the burden of showing that the circumstances of the case were consistent with his innocence beyond a reasonable doubt, in order to secure his acquittal, whereas the law places upon the State the burden of affirmatively showing the facts and circumstances to be not only consistent with guilt but inconsistent with any theory of innocence, before a conviction is authorized. Considering this excerpt in connection with the general charge of the court, it did not put the burden of proof upon the defendant of showing that the circumstances of the case were consistent with his innocence beyond a reasonable* doubt.
Ground 37 of the motion complains that the court erred in failing to charge the jury upon the rules of law governing the defense of alibi, to wit: “Alibi as a defense involves the impossibility of the prisoner’s presence at the scene of the homicide at the time
Ground 38 of the motion for new trial assigns error on the following charge of the court: “Now there have been certain affidavits read to some of the witnesses that were testifying in this case on behalf of the State. The court charges you those affidavits were read to the witnesses for one purpose and one purpose alone, and that was to enable them to refresh their recollection; and whatever may have been contained in those affidavits, as the affidavits themselves were not introduced in evidence, it would not be proper for the jury to consider, whatever was stated in these affidavits, unless the witnesses on the stand testified to those facts, if there were any facts that were incorporated in the affidavits.” It is insisted that this charge was error: First, because the court therein intimated and expressed an opinion as to what had been testified on the trial of the case; and because the statement of the court that certain witnesses had testified on behalf of the State was tantamount to an expression of opinion that the testimony of these witnesses was favorable to the State, and therefore supported the contentions of the State as to the guilt of the defendant. Second, because said charge erroneously instructed the jury that the statements made in these affidavits should not be considered by the jury unless the witnesses making the affidavits testified to the facts contained therein. It is insisted that under the law the statements contained in these affidavits were not a subject-matter for
Error is assigned in ground 39 of the motion, because of the following charge of the court to the jury: “Now I charge you part of section 448(oooo), in the 11th volume of Park’s Annotated Code, from the act of the legislature that was passed in the year 1917. This law says, 'All apparatus or appliances which are used for the purpose of distilling or manufacturing any of the liquors or beverages specified in this article are hereby declared to be contraband, and no corporation, firm, or individual shall have any property right in or to the same; and when said apparatus or appliances are used, or about to be used, for the purpose ‘of manufacturing, using, holding, or containing any of the liquors or beverages specified in this article, are found or discovered by any sheriff, deputy sheriff, or other executing officer of this State, the same shall be summarily destroyed and rendered useless by him without any formal order of the court.’ That is, under the law which I have just read to you, any arresting officer in the State of Georgia has the right to destroy, without any order of court, any apparatus or appliances used or about to be used for the manufacture of alcoholic liquors; and the fact that an officer may have destroyed any apparatus or appliance for the manufacture of alcoholic liquors, that would not give any person any right to inflict any violence upon such officers, because under the laws of the State of Georgia he has the right, as passed by the legislature of the State of Georgia in 1917.” The exception to this charge is that there was no evidence adduced upon the trial showing that any still, appliance, or apparatus used for the manufacture of alcoholic liquors, in which the defendant had any interest or with which he had any connection, was ever torn up by the deceased officers; and that it was error extremely prejudicial to the defendant for the court to give the State the benefit of such theory in his charge. The charge complained of was not error for the reason assigned, because there was some evidence tending to show that the defendant had an interest in the still destroyed.
Judgment affirmed.
Concurrence Opinion
who concur in the ruling announced in headnote 1, and subdivision (a) of that note, but dissent from the judgment of affirmance.