155 Ga. 660 | Ga. | 1923
Lead Opinion
O. C. Fairfield was tried- under an indictment charging him with having, on the 29th day of May, 1921, maliciously burned a railroad bridge of the A., B. & A. Railway Company. The jury trying the case returned - a verdict of guilty, and he was thereupon sentenced to life imprisonment at hard labor. The accused made a motion for new trial, which being overruled, he excepted.
The first ground of the amendment to the motion for new
Nor was the evidence of the witness inadmissible for the reason urged in the remaining ground of .the objection taken,— that it related to acts and doings of a criminal character not connected with the offense for which the prisoner was on trial. Generally such evidence is objectionable and inadmissible. In the .case of Alsobrook v. State, 136 Ga. 100 (54 S. E. 805), it was said: “ Evidence of the commission of a crime other than the one charged in the indictment is generally not admissible; but there are exceptions to this rule. Evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged is admissible; or where other offenses committed by the accused tend to prove malice or motive or the like, evidence of other offenses is sometimes admitted. But in all 'cases where evidence as to the commission of other offenses is admitted, there must be a connection between them and the offense with which the accused is charged. ‘ To make one criminal act
In the case of Frank v. State, 141 Ga. 243 (80 S. E. 1016), the admission of evidence of a criminal act other than that charged in the indictment was held, by the majority of the court, to be admissible. In support of the ruling there made it was said that ■the evidence admitted over objection tended to show motive and a common scheme or plan of related offenses, and also tended to show the identity of the person committing both of the crimes, the one charged and the other sought to be proved. In the case of Williams v. State, 152 Ga. 498 (110 S. E. 286), it was said: “The general rule is, that, on a prosecution for. a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent
In 1 Wharton’s Criminal Evidence (lO.th ed.), 146, is laid down this rule: “When the,object is to show system, subsequent as well as prior, collateral, offenses can be put in evidence, and from such system identity or intent can often be shown. The question .is one of induction, and the larger the number of consistent facts, the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to indicate they are a part of the system. In order to prove the purpose and design, evidence of system is relevant; and in,order to prove system, collateral and isolated offenses are admissible from which system may be inferred. Or, where crimes are so mutually connected or interdependent that the proof of one is not coherent without evidence of the other. But to be admissible as relevant under system, the collateral, extraneous, or independent offense must be one that forms.a link in the chain of circumstances and is directly connected with the charge on trial.' Such system may be common to all offenses known to the law. Again, there may be like crimes committed against the same class of persons, about the same time, showing the same general design, and evidence of the.same -is relevant which .may lead to proof of identity.” In 12 Corpus Juris, 634, it is said: “In the re-, ception of circumstantial evidence great latitude must be allowed. The jury should have 'before them and are entitled to consider every fact which has a bearing on and a tendency to prove the ultimate fact in issue, and which will enable them to come to a satisfactory conclusion. The government has the right to show the whole history of the conspiracy from its commencement to its conclusion. And • it is no objection that the evidence covers a great many transactions and extends over a long period of time,
The 12th ground of the motion for new trial assigns error upon the ruling of the court refusing to allow the defendant to make an additional statement. The defendant had already made his statement. After the State had introduced other evidence, the defendant requested the privilege of making the additional statement. In this ground of the motion for new trial it is not suggested that evidence relating to new and independent facts had been introduced by the State after the defendant made his statement, but it is distinctly recited that the State had introduced “ certain rebuttal evidence, and thereupon at the close ’ of such rebuttal evidence the defendant asked leave of the court to make an additional statement for the purpose of explaining certain facts and things that had been brought out and introduced against him, to wit, concerning maps, papers, and letters identified by Lewis.” There is no suggestion in the ground of the' motion that this evidence of Lewis contained new substantive facts, but, as shown by the language of the motion itself, it was entirely in rebuttal. If the facts testified to by Lewis were new facts and not merely in rebuttal, that could have been stated in the ground of the motion, and should have been so stated if the movant Telied upon the ground that new facts had been introduced; and under numerous rulings of this court, it can not go into other parts of the record in order to strengthen and make valid this ground of the motion for new trial. There is nothing shown in this ground to take the case out of the general rule that whether a defendant will be allowed to make a second statement rests in the discretion of the trial court. Of course we recognize the principle that while the allowance of the privilege sought is in the discretion of the court, there may be cases in which a refusal by the court to grant the privilege would be an abuse -of discretion. If the court did as a matter of fact abuse the discretion in this particular ease, the
In the 5th, 6th, and 7th grounds of the motion for new trial complaint is made that the court sustained objections made by the State to ■ certain evidence offered by the defendant, tending to show that an alleged confession of the defendant which had been
The rulings made in headnotes 6 and 7 require no elaboration.
Other persons, Thomas, Bishop, and Hall, were arrested for the burning of the railroad bridge soon after the event. They were brought before a committing magistrate for a preliminary hearing, and the prisoner in this case, under arrest for another offense, was brought by the sheriff before the magistrate presiding at the preliminary hearing and there introduced as a- witness, and while on the witness-stand was questioned. He was not ad'monished as to his right to decline to answer questions that tended to incriminate him, but in the course of his testimony he made statements which tended to incriminate him and which in substance amounted to a confession that he and the others had burnt the bridge. Evidence of these statements thus made was introduced by the State on the trial of the instant case, as confessions, and was objected to upon the ground that they were not. freely and voluntarily made, but that the circumstances under which they were made precluded their being of the character of a free and voluntaiy confession. The objection was overruled. We are of the opinion that the court did not err in this ruling. Counsel for plaintiff in error relies largely oh the case of Adams v. State, 129 Ga. 248 (supra), where is was said: “The spirit of the law is that one accused of crime shall not be required to be put under oath, and thus to be placed in the dilemma of either being required to testify as a witness against himself, or being subject to the penalties of false swearing. His right to speak, not under oath, is a statutory privilege, and it is not lawful to require him to be sworn as a witness against himself. Where a coroner’s jury has been summoned to hold an inquest over the body of a deceased person who appears to have been murdered, and another has been arrested and is held in custody, accused of the crime, he is not formally upon trial, but substantially he is so, and the crime for which he has been arrested, as well as his connection with it, is the subject of investigation. Eor the coroner, or other officer representing the State, to bring him forward as a witness
The prisoner, it is true, was in the custody of the law at that time; but it does not from the ground of the motion appear that he was then charged with the commission of the offense for which he was being tried in the present case. His answers given under those circumstances were admissible, even though he was not cautioned that he need not answer a question which tended to incriminate him. If he had claimed his privilege, no doubt it would have been allowed. What we are saying here is also applicable to the objection to the prisoner’s statement before the grand jury.
Error is assigned upon the following charge of the court:
*670 “First, address yourselves• to the consideration as to whether or not there was a confession made by the defendant, and if there was as contended by the State, see if that confession was freely and voluntarily given without the slightest hope of reward or remotest fear of punishment; and if you are not satisfied beyond a reasonable doubt of such circumstances, address yourselves to the consideration as to whether or not there was any other confession made at any time; and if there was, apply the same rules to that and see if that measures up to the standard and rules which the court has already given you in charge. If there be such confession or confessions, either one or more, or any at all, which was made freely and voluntarily and without the slightest hope of reward or remotest fear of punishment, then even though you are satisfied of that beyond a reasonable doubt, you would not be authorized to convict this defendant, but go further and see if the crime itself has been committed, to wit, the burning of the railroad bridge, or if there are any other corroborating circumstances, as contended by the State; and if that is established, that is to say, corroboration of the alleged confession was shown to your satisfaction beyond a reasonable doubt, and all other elements of the alleged offense are present and shown to your satisfaction beyond a reasonable doubt, that is to say, if you are satisfied beyond a reasonable doubt under the rules of law that the defendant is guilty as charged, alleged and contended on the part of the State, then it will be your duty to find this defendant guilty, and the form of your verdict would be, ‘ we the jury find the defendant guilty,’ ”
The first objection to this charge, which is in effect that the language in which the jury were instructed that “the confession must have been made without the slightest hope of reward or the remotest fear of punishment, was disposed of by the ruling made in the seventh headnote. In other respects the charge is not beyond criticism. It is wanting in clearness and accuracy. The language, “ but go further and see if the crime itself has been committed, to wit, the burning of the railroad bridge,” standing alone would seem to intimate that proof of the burning of the railroad bridge would itself show the commission- of a crime, whereas proof of the fact that the railroad bridge was burnt would not show that the crime was committed, without other
Judgment affirmed.
Dissenting Opinion
dissenting. After the most careful study of this case and the most painstaking investigation of every detail of the record that lies within my -limited capacity, I am compelled to dissent from the judgment of affirmance in this case. I dissent quoties toties. I am not thinking of the defendant. From the countenance of the case as developed from the evidence he seems to be a bad citizen. He may be guilty not only, in the in
1. The defendant in the court below, at the conclusion of the evidence for the State, sought to prove an alibi and to prove the falsity of an alleged confession attributed to him, and offered three witnesses in turn by whom he sought to establish an alibi, and the testimony of all of these witnesses was rejected and repelled severally and seriately upon objection of -the solicitor-general. The solicitor-general objected, “ because the testimony as to where the witnesses were on the night of May 29, 1921, is irrelevant and immaterial at this stage of'the trial, without any denial on the part of the defendant of the alleged confession shown by the State, insisting that the only relevant thing now is whether the confession is true, and that until he [the defendant] makes a denial or says that the confession was - made under circumstances on which the jury ought not to believe, he can’t collaterally attack it by showing that this man wasn’t with him; it being at this time entirely irrelevant and immaterial whether this witness was there
The solicitor-general is frank enough to say that the exclusion of this testimony was technically erroneous, but insists that the
However, in my opinion, learned counsel for the State miss the whole point of the exception presented by the plaintiff in error in this case. In this question is presented much more than the mere admissibility of testimony, and the consequent ruling that error in the rejection of testimony might generally be cured, pro
In my opinion the ruling of the court as to this point conflicts altogether with the spirit of several of the decisions of this court, in which it is held that it is error for State’s counsel even to refer to the fact that the defendant has not made a statement. The law gives the defendant the same right not to make a statement as to make one, with freedom from criticism provided he chooses the former rather than the latter course. In the case at bar the solicitor-general argued to the court, in the presence of the jurjq facts from which no other inference could be drawn than that it was the duty of the defendant to deny the confession attributed to him, and the jury knew that he could only deny by a statement; and this despite the fact that a defendant is not required to deny anything either by statement or by testimony in order to be permitted to introduce testimony, nor is he required to introduce testimony at all. The question here involved is not a mere question of practice and procedure, but it is a question of the right of a defendant to control,- through his counsel, the conduct of his own case; and these questions were not involved or considered in any of the cases in which it has been ruled that the rejection of admissible testimony may generally be cured by its subsequent admission. In the trial of a capital felony the conduct of the case and the order in which it shall be presented to the court and jury, and whether or not the defendant shall make a statement, are questions of delicacy and gravity which go to the very heart of the issue. Frequently an announcement of ready is
I can not say that the rulings upon the point now being considered, and which I conceive to relate principally, if not altogether, to the right of a fair trial with benefit of counsel, unhampered by aggravating restrictions and free from interference or dictation from the counsel of the opposite party, fall within the decisions which relate merely and are confined entirely to the question of the admission of evidence. The solicitor-general had no doubt entertained this view, and no doubt the learned “trial judge sustained the objection upon the idea that his ruling was in accordance with the law. This is apparent from the fact that the solicitor-general in making the objection conceded that the evidence would be admissible at a later stage of the trial; and the court seemingly paid no attention to the statement made by counsel in his place as attorney for the defendant, that he would be greatly hampered and his client injured by being prevented from presenting his case in the manner and order in which he had prepared and mapped it out. The ruling of the court upon the objection of the solicitor-general in this case must be adjusted as every other open ruling of every other court upon the same question ; that is to say, the ruling must be adjusted to and coextensive with the objection made. Thus State’s counsel having objected, not that the testimony was under all circumstances irrelevant and immaterial, but that it was irrelevant and immaterial in advance' of a denial of the confession, though it would be admissible thereafter, the sustaining of the objection by the court was a ruling' by the court, not that the evidence was irrelevant and immaterial and inadmissible generally, but that in the particular case and under
Altogether aside from the guilt or innocence of the present plaintiff in error, there is involved an abridgment of one of the very essential elements of a legal trial,— the benefit of counsel. Likewise this ruling will restrict the privilege now allowed by law to defendants in criminal cases of deciding when they will or will not make the statement, which is now accorded as a matter of privilege and justice, by establishing the principle that in certain instances the judge can require a statement to be made as a prerequisite to permitting a defendant to introduce testimony the relevancy and need of which can not be gainsaid.
2. The court erred in refusing to allow the defendant to make a second statement. I have clearly in mind the numerous rulings of this court to the effect that permission to make a second statement is a matter within the discretion of the trial judge. The fact that most matters of procedure must of necessity be left to the discretion of the trial court does not preclude the thought that that discretion may in some instances be improperly or unwisely exercised, and that also the discretion may be misused, which means the,same thing as abused in a legal sense; and in this case I think (speaking juridically) that the learned trial judge misused and therefore abused the discretion vested in him. Without considering the merits of the assignment of error relating to the introduction of evidence in rebuttal of the defendant’s statement, or at least admitted because it was held to be in rebuttal, the court permitted the witness Lewis to testify as to statements alleged to have been made by the defendant, confessing
I think that there is -merit in some of the other exceptions contained in the bill of exceptions; but as they do not tend to establish any new principles, and the error, if any, consists in the misapplication of the trial court of abstract principles in themselves correct, and are recognized throughout this country, and as this case, by the judgment of the majority, will never be tried again, an expression of my views could serve no useful purpose.,