168 Ga. 409 | Ga. | 1929
Lead Opinion
The plaintiff in error was convicted of' the offense of murder, and sentenced to die by electrocution. He made a motion for a new trial, which was refused, and the. exception is to that judgment. As presented by the evidence, it is the contention of the State that the plaintiff in error unlawfully shot a man named Griffin and was endeavoring to escape, and that he shot and killed J. E. McDaniel, a police officer of the City of Atlanta, who was trying to arrest him, and that' he shot the officer for the purpose of evading an arrest and to effect his escape. As appears from the record, it is the contention of the plaintiff in error that he was fleeing from the scene of the shooting of Griffin, not for the purpose of escaping, but in order to reach the officer and get in the store behind the officer for protection from Griffin and his companions, and for protection from the crowd who were crying out against-him; that he knew that Griffin and two other men had been looking for him to shoot him down on sight, and that they had shot down and dangerously wounded a man named Zink under
The amendment to the motion for a new trial contains eight grounds. These will be considered in reverse order. .In ground eight complaint is made that the court permitted the solicitor-general, over the objection of the defendant, to argue to the jury that “statistics'compiled by reliable authorities, published in a book which he (the solicitor-general) had and could produce, showed that Georgia had 561 murders in 1922,” it being assigned as error that “the court permitted the solicitor-general in his argument to get before the jury for their consideration alleged facts which were irrelevant, immaterial, inadmissible, and highly prejudicial to the defendant, and that the argument based on said alleged facts (the claim that there were 561 murders in Georgia in 1922) was highly prejudicial to the defendant in that both the assistant solicitor-general and the solicitor-general in their argument commented on the large number of murders in Georgia, and that “lax law enforcement was largely responsible for crime conditions in Georgia.” It appears from this ground of the motion, as approved by the court, that both the assistant solicitor-general and the solicitor-general argued to the jury that the defendant was guilty of murder, and insisted and urged the jury to bring in a verdict finding the defendant guilty of murder, without recommendation. In the course of the argument of the solicitor, after he had been allowed to state and argue to the jury that statistics showed 561 murders in Georgia in 1922, he urged that the only proper verdict in this case would be a verdict finding the defendant guilty of murder, without recommendation, which meant the death penalty; and further stated that a life sentence would be almost a farce, that in and after three years the defendant would be eligible for parole and would make
Section 4957 of the Civil Code of Georgia provides:' “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the same, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff’s attorney is the offender.” Even before the adoption of the Code of 1863, Judge Nisbet, in Mitchum v. State, 11 Ga. 615, and Berry v. State, 10 Ga. 511, 522, announced in language of unanswerable logic and judicial inspiration the proper rule applicable to and governing the argument of counsel, and stressed the point that matters not in evidence were not proper subject for argument and could not afford the basis for a jury’s verdict. In Washington v. State, 87 Ga. 12 (3) (13 S. E. 131), this court held that “On the trial of an indictment for arson, it was error to allow the solicitor-general, over objection of defendant’s counsel, to state, in his concluding argument, that frequent burnings had occurred throughout the country, and to xxrge the jury, in consequence thereof, to strictly enforce the law iix the case then on trial.” Upon this error the judgment refusing a new trial was reversed. Mr. Justice Lumpkin, delivering the unanimous opinion of this court, said: “It is the well-settled policy of this court that counsel in the argument of cases should confine their remarks to the law and the evidence, and that in no instance should they be permitted to comment upon extraneous facts prejudicial to the interests or rights of a party, over his objection, unless such facts, be of a kind of which
The court in this case also ruled as to whether the fact, if true, that there were 561 murders in Georgia in 1922 was not one of which the court or jury could take judicial cognizance. It can not be said that all people, unlettered- as well as educated, and non-readers as well as close readers, know such facts' as how many murders or other crimes are committed in a certain State in a certain year, and the court could not correctly hold that the statistics to which the solicitor-general referred were matters of such common knowledge that the court would take judicial cognizance of their existence without proof. As to this, in Washington’s case it was held: “Certainly the fact he undertook to state was
'In the opinion of the majority of the court, none of the remaining assignments of error require a reversal of the lower court..
In view of the error set forth in the first headnote, the court erred in overruling the motion for a new trial. .
Judgment reversed.
Concurrence Opinion
We concur in the judgment of reversal on the eighth ground of the motion for a new trial under the ruling in Washington v. State, 87 Ga. 12 (3) (supra), where it was held-that “On the trial of an indictment for arson, it was error to allow the' solicitor-general, over objection of defendant’s counsel, to state, in his concluding argument, that frequent burnings had occurred throughout the country, and to urge the jury, in consequence thereof, to strictly enforce tlie law in the case then on trial.”
In the foregoing opinion I have endeavored to express the opinion of the court with reference to the eighth ground of the motion for a new trial; but I think it is not improper for me to deal-fully with each of the other grounds. I concur in the judgment of reversal, but dissent from the ruling expressed in the second headnote..
The seventh ground of the amendment to the motion for a new trial complains of a violation of section 1058 of the Penal Code of 1910 and section 4863 of the Civil Code, which declares: “It is error for any or either of the judges of the superior courts of this State, in any case,'whether civil or criminal, or in equitjq during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the
“Mr. Guillebeau: The solicitor-general is undertaking to discuss to the jury, as fact, certain things regarding the family of the deceased, and there is no evidence in this record as to whether or not the deceased even had a family, much less evidence of any financial condition; and we object to any remarks pertaining to the financial condition of the family, or members of the family, because there is no evidence of that kind in the record, and such remarks could serve no purpose except an effort to inflame the mind of the jury against the defendant.
“The court: What was the remark .you claim to have made yourself, Mr. Boykin, that is being objected to?
“Mr. Boykin: I told the jury it was a pity that they couldn’t see with their own eyes the enactment of crime, that words could only translate visions, that they couldn’t see it themselves, thejr would have to listen to the witnesses in order to try to translate what they see themselves, that they couldn’t see the suffering of the victim, they couldn’t examine his thoughts or know his emotions while he was conscious of the fact that death was approaching, and that he was leaving a dependent wife and children.
*415 “Mr. Guillebeau: And didn’t you add further, without sufficient property and sustenance—
“Mr. Boykin: No, I didn’t say anything about that, I stated what I said.
“Mr. Guillebeau: We ask your honor to instruct the jury not to consider the discussion of these things, because there is no evidence of these things, and we ask that your honor instruct the jury not to consider such arguments from the solicitor-general.
“The court: I’ll ask that any words with reference to dependents or others that might remain after death will not be considered; but Mr. Bojdrin will be permitted to stress the other point that he has outlined as a part of his argument to the jury. The question of whether some one remains who is dependent on him, the question of dependents is not material to the case; it is the facts that were incident to the commission of the alleged offense that are pertinent, and that is admissible, only. You may proceed, with that omission, Mr. Boykin.”
The ruling of the court excluding all argument with reference to dependents or others that might remain after death was in accordance with what has been said in the preceding division of this opinion. We have quoted the assignment of error in full, and it is plain that it is of such nature as not to present for our consideration whether or not the use of the word “stress” amounted to an intimation- of opinion as to anything in the case; and if so, it does not appear to what it referred; what the other thing that the court gave Mr. Boykin permission to stress was is not so presented as to enable the court to determine the merits of the exceptions actually sought to be presented.
It appears from the recitals of fact in the sixth ground of the motion for a new trial, as approved by the court, that defendant’s counsel was entitled to the concluding argument in the case. After defendant’s counsel had finished the concluding argument and had taken his seat and was waiting for the court to charge the jury, the solicitor-general arose, and addressing the court, said:
“Mr. Boykin: Mr. Guillebeau has made the statement to the jury, your honor—
“Mr. Guillebeau: I think the jury ought to be retired—
“Mr. Boykin: No, I want the jury to hear my motion Mr. Guillebeau has made his statement to the jury, he has made the*416 arguments to the jury — in fact, he has repeatedly stated to this jury that Mr. McDaniel was at the hospital, conscious, able to speak and didn’t speak, and didn’t say anything to indicate that this man wilfully and intentionally killed him. Now, that’s a misleading statement to this jury. Mr. Guillebeau as a lawyer understands that the rule of evidence doesn’t permit hearsay testimony. There is nothing Mr. McDaniel could have said to his wife, relatives, doctors, friends, or anybody else that would have been admissible, unless he was conscious, at the time, that he was in a dying condition. The evidence of the doctor was that he wasn’t apparently conscious of the fact that he was in a dying condition, that he was rational, able to talk and did talk, up until the time of his death. Now Mr. Guillebeau has put us in the attitude by that argument of failing to put in evidence that we could have put in, according to the way he has argued to the jury; whereas, as a matter of fact, every rule of law would preclude us from putting that evidence in, and he knows it perfectly well; and if we had offered it, he would have objected to it; and I don’t think those kind of arguments or speeches ought to be allowed to go to the jury without challenge — ■ he is in conclusion, and he didn’t have any right to argue those questions.
“The court: You may reply to the court, Mr. Guillebeau, but Mr. Boykin’s argument, his remarks, were addressed to the court, in the presence of the jury. Now, you may reply to it in the presence of the jury.
“Mr. Guillebeau: As your honor knows — the record will bear me out, I proved by their own witness, the doctor from the Grady Hospital, that Mr. McDaniel lived from Thursday afternoon until Sunday morning, conscious, rational, and talking the most of the time. I commented on the fact that they never brought us here any dying declaration from him; and if Mr. Boykin doesn’t know enough law to know that he could introduce a dying declaration in this ease, it is about time he should study some.
“ The court: What is necessary to constitute a dying declaration?
“Mr. Guillebeau: What is necessary?
“The court: Yes?
“Mr. Guillebeau: A statement from a man who is in the article of death, or in a dying condition, who is conscious of that condition.
*417 "The court: Now, suppose Mr. McDaniel had made a statement as to what he contends the facts were; but suppose at the time he did it he didn’t believe he was going to die; would it be admissible ?
"Mr. Guillebeau: It would not be admissible; but my position is that, with a man mortally wounded, like he was, a man who was conscious, who was rational, and a man who was going to his death, and a man who made the dying statement that Mr. Stephens brought out in his argument, that he was glad that he didn’t shoot him, as he went to his Maker — they brought us that as an argument from opposing counsel — here’s what I argued to the jury, and I tried to be fair, and I tried to be reasonable: Here was a man in a dying condition, there for two days, nobody expected him to get well —rational, conscious, and talking, and not a word from him, and not a word as to why there wasn’t a word from him, it wasn’t proved—
“The court: Is it in evidence to the effect that Mr. McDaniel was conscious of the fact that he was in a dying Condition and then made a statement, in view of the fact that he knew he was in a dying condition ? Is there any evidence that he did that ?
“Mr. Guillebeau: Your honor, I don’t know just what the details of the evidence are—
"The court: Now, suppose this: suppose everybody in the hospital believed Mr. McDaniel was going to die, but he didn’t' believe it, and suppose he had talked all the time up until his death; would what he said be admissible?
"Mr. Guillebeau: It would not, your honor. But here’s what I was arguing: That there was no statement, and they didn’t account for any reason why they never brought any statement; and if they have got any statement from Mr. McDaniel, whether he knew he was going to die or not, I’m willing to admit it in evidence right now.
"The court: Well, before anything a man saj^s would be admissible, it would have to first be shown that he made the statement while he was conscious and at a lime when he was in a dying condition, and that he was conscious of his condition and that he made the statement then. That’s the only way you could get it legally before the jury.
"Mr. Guillebeau: I realize it, your honor.
"The court: Yery well.”
I am of the opinion that the learned trial judge erred in permitting the solicitor-general to make what was practically the concluding speech in the trial of this murder case. As long as persons charged with crime are represented by counsel who are competent to argue in behalf of their innocence or plead in mitigation extenuating circumstances which may lighten the penalty imposed by law, there can be no means of properly estimating the value of the concluding argument in a criminal case. In my experience and observation of nearly fifty years at the bar I have observed more cases lost or won by the lack of opportunity on the part of opposing counsel to reply to the concluding argument which by law fell to his adversary than I can specifically assign to any other fact or principle involved in a case. There are but few cases in which there are not two sides to the question, and in the concluding speech counsel has the opportunity of taking advantage of every
In the early case of Cartright v. Clopton, 25 Ga. 85, this- court granted a new trial to the plaintiff because the court refused to allow counsel for the party entitled to the conclusion to argue the case when the defendant’s counsel declined to argue because the plaintiff’s counsel had already had an opening argument; holding: “On the trial of a case, when the evidence had closed, the court ' directed counsel for the plaintiff to go on and state his points relied on for a recovery, to the jury. Plaintiff’s counsel did so. Defendant’s counsel then asked the court to give the law in
In this criminal case and under the circumstances apparent in
In the fifth ground of the amendment to the motion for a new trial the complaint is made that the court illegally withheld from the jury, against the demand of the defendant, certain material evidence which the defendant sought to elicit from the State’s witness E. L. Griffin on cross-examination, and that the court thus erred in abridging and denying the defendant’s right to a thorough and sifting cross-examination of this State’s witness. It was the witness Griffin who was shot by the accused before the accused ran and collided with officer McDaniel. In the trial of the case counsel for the defendant undertook to bring out, on cross-examination of the witness Griffin, that Griffin and two other men had been looking for the accused to shoot him’down on sight, and that, thinking that a man named Zink was the accused, they had shot him down on sight. Counsel for defendant further undertook to prove, on cross-examination of Griffin, that the accused knew of this, and from this fact knew that these three men were on the lookout for him to shoot him down; and that he was liable to- be shot down by them at any moment if he traversed the streets of Atlanta. It appears from the record that while counsel for the defendant was stating to the court what he expected to prove and the purpose for which he desired the testimony, the jury being retired, the court interrupted counsel with the following ruling: “You needn’t argue it. I’ll exclude it. I let you show anything that occurred down there at
„ "Hnder the ruling of the court the State was allowed to prove that the accused shot Griffin prior to his shooting McDaniel, in support of the State’s contention that the accused had committed a crime and was endeavoring to escape. These were substantial facts. And yet the defendant was denied the right to bring out any fact or circumstance leading up to the shooting of Griffin, which might tend to show that he had not committed a crime, ox to mitigate the offense. The jury trying the accused for his life had submitted to them the fact that he had shot Griffin, but the accused was denied the right to let the jury know by cross-examination why he shot Griffin, and to justify himself, if he could, for this alleged crime from which he was said to be fleeing. . “The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him.” Section 1044, Penal Code of 1910. “The right of a defendant to test the consistency or improbability of a witness’s story, as well as his interest or feeling in the case, by cross-examination thorough and sifting, is secured to every party as to witnesses called against him. Civil Code, § 3864. And a material abridgement or denial of this right is ground for a new trial.” Holt v. State, 2-Ga. App. 383 (58 S. E.
In the trial the court charged the jury on the subject of murder and the subject of accidental killing, but did not charge upon the law of either voluntary manslaughter or mutual combat, or upon the subject of involuntary manslaughter in the commission of an unlawful act. The defendant requested instructions based upon the law of voluntary manslaughter and involuntary manslaughter, which were refused. It appears from the record that counsel for the accused did not insist that the defendant was entitled to an acquittal, but argued that he should only be convicted of involuntary manslaughter in the commission of an unlawful act; and therefore the question presented is whether the requests for instructions were in such form as to require the court’s compliance. The requests for instructions are as follows:
“Defendant . . requests the court to charge the jury as follows, each paragraph to be considered a separate and distinct request to charge:
“1. The defendant requests the court to charge the jury the law of manslaughter.
*425 “2. The defendant requests the court to charge-the jury the law of voluntary manslaughter. '
“3. The defendant requests the court to charge the jury the law of voluntary manslaughter as based upon the law of mutual combat.
“4. The defendant requests the court to charge the jury the law of involuntary manslaughter.
“5. The defendant requests the court to charge the jury the law of involuntary manslaughter in the commission of an unlawful act.
“6. The defendant requests the court to charge the jury that a person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, where it satisfactorily appears there was no evil design or intention, or culpable neglect.”
It will be observed that these requests do not indicate any definite principle applicable to the facts of the case at bar, or specify what portions of what is called “the law” defendant desired to be given in charge to the jury. It was not error to refuse the so-called requests in the forms presented.
The court erred in charging, as complained of in the first special ground of the motion for a new trial, as follows: “Gentlemen, if you should believe beyond a reasonable doubt that this defendant, in the County of Fulton and State of Georgia, at any time prior to the date of the finding and return of this bill of indictment, shot a man with a pistol and fled from the scene or the place where he shot the man with the pistol; and if you should believe that, while so fleeing, the deceased, as an officer, a police officer of the City of Atlanta, undertook to stop him from fleeing, to take him into custody, then and in that event the court instructs you that the deceased, if he was a police officer of the City of Atlanta, and that it occurred in the City of Atlanta, this county, would have the right to apprehend him — the legal right to arrest him, and he would have the legal right to use such reasonable force as would be necessary to effect the arrest; and if you should- believe that he undertook to arrest him, and he undertook to use such reasonable force only as was necessary to effect an arrest, and that while so doing this defendant did intentionally shoot him with a pistol as charged in ■this indictment, causing his death — causing the death of the one named in the indictment, then and in that event you would be