172 Ga. 797 | Ga. | 1931
On the afternoon of June 18, 1930, Lige Harper, Ernest McCullough, and Clifford Jones were killed by pistol shots in Polk County near the residence of William Hulsey. During the ensuing night their bodies were carried in a wagon to a secluded, place several miles away, and cast head foremost into an abandoned well. On the following day the bodies were discovered, and a coroner’s inquest was held. William Hulsey, his two married sons Fred and Bay, his son-in-law Tom Hicks, and L. E. McCullough were arrested and confined in jail, the two first named in an adjoining county. The next regular term of court would convene on the fourth Monday in August. On June 22 an attorney was called by telephone from Atlanta. At a conference then held it was agreed that the attorney would represent William and Ered Hulsey if an indictment should be found against them. The attorney stated at the time that he thought that if an indictment should be found against them it would be at the regular August term. On July 3 the attorney went again to see the Hulseys, at which time they informed him “there was no use employing a lawyer and paying him unless there was a bill found against them.” On July 5 the judge called a special term of court to convene July 14, “for the trial of criminal business,” and ordered the grand jury “sworn and serving at the February term, 1930,” to reconvene on July 11 “for the disposition of such business as may come before them.” On the same day the judge wrote to the attorney, informing him of the call of the special term, and stated: “If you so desire, I can have the prisoners here on Saturday the 12tli inst.j so that the case may be formally sounded. You will be given
The grounds of the motion for a continuance were positively sworn to by both of the defendants. In one of these it was alleged substantially: “There is prevalent in this county a degree of excitement against these defendants, as a result of the extraordinary circumstances surrounding the killing of the deceased and Lige Harper and Ernest McCullough at the same time, which renders it unsafe for these defendants to go to trial at this term of court. . . The killing of these three persons aroused such extraordinary excitement in the minds of the people of this county that it influenced the calling of this special term of this court and the recalling of the February term grand jury within a few days after said homicides were committed, for the sole main purpose of placing these defendants and the other persons charged with said killings upon immediate trial before said excitement should have an opportunity to subside. . . The regular semi-annual term of this court would have convened by law on the fourth Monday in August, 1930, just six weeks after this term convened, and . . the trial of these defendants on this indictment at that term would . . serve the ends of justice. . . It is unfair to these defendants to require them to stand trial on said indictment at this term, called and held within twenty-six days after said homicides were committed, while popular excitement against them is extraordinarily great, and at a time when such popular excitement is likely . . to cause these
There was no evidence of the existence of public excitement other than the sworn allegations of the ground of the motion. In Maddox v. State; 33 Ga. 581, it was said by Jenkins, J.: “It is. alleged that the court below erred in refusing to continue the case, upon the showing made by the defendant. This showing presents two causes for continuance. 1st. The recent commission of the homicide charged (less than two months having elapsed between the killing and the trial), and the prevalence of a degree of excitement in the county against the accused, which rendered it unsafe for him to go to trial at that term of the court. . . This latter requisition, however, was subsequently abandoned by the-court, and the continuance on this ground refused upon the authority of a decision of this court in the case of Thompson v. The State, 24 Ga. R. 297. (See page 303.) In that case this court held, that, since the passage of the act of 1856 providing additional and thorough tests of the competency of jurors, there was little danger to -be apprehended by those charged with crime, from unfriendly excitement in the public mind, and that the existence of such excitement was not of itself a sufficient showing for a continuance of a criminal ease. In the case of Thomas v. The State, 27th Georgia Reports, 287, it was ruled, ‘that popular excitement alone is not sufficient to procure the continuance of a cause, except under extraordinary circumstances.’ We are not prepared to say that the affidavit of the accused in this case shows any extraordinary degree of popular excitement, or any extraordinary circumstances likely to swell that excitement to a height beyond what usually results from homicide. Nor can we say that had this been the only showing for a continuance it should have received the favorable consideration of the court. In the connection in which it was presented, however, it was worthy of consideration. In all cases, in which this cause is superadded to others, if the court have a doubt of the sufficiency of those other causes, this one may very properly turn the scale in favor of the motion to continue, even though there be shown no ‘extraordinary’ circumstances. This I understand to be the effect of past rulings on this subject, and I should be very reluctant to see the force of such a showing further diminished.”
In Taylor v. State, 135 Ga. 622 (70 S. E. 237), it was held: “A continuance will not be granted simply on the asseveration of the accused, without any supportive evidence, that because of public excitement he Will not be able to have a fair trial.” In Biggers v. State, 171 Ga. 596 (156 S. E. 201), it was held: “There was no abuse of discretion upon the part of the court in refusing a change of venue upon application made therefor, or in refusing a continuance of the case.” In the opinion it was said: “The court did not err in overruling the motions for a change of venue and for a continuance. In passing upon both of these motions the court exercised a sound discretion, and it does not appear that that discretion was abused. The publication of the article in a newspaper of wide circulation in the county and the State did not require a finding upon the part of the court that an impartial jury could not be obtained at the time of the trial, that is, on November 5, 1929, a short time after the article in the newspaper referred to was published. And it was not error for the court to refuse to hear evidence offered to show that the former jury was divided upon the question as to whether or not the defendant should be recommended to mercy. The jury trying this ease were not concerned with the opinion of the jury that had passed upon the question of the guilt or innocence of the defendant at the first trial. There was no competent proof offered to show that there was prevailing in the county such general excitement and prejudice against the prisoner as would require the case to be postponed to a subsequent date. In the selection of a fair and impartial jury the prisoner was protected by his right to peremptory challenges, and to have the statutory voir dire questions propounded; and if these were not sufficient, the prisoner had his right of challenge to the poll and to have had any juror called to try him put upon the court as a trior and the question of such juror’s competency and impartiality thoroughly tested.” Viewed in the light of the foregoing decisions, the sworn allegations of public excitement set forth in the motion for continuance were matters of opinion, and did not demand a finding that there was such public excitement as rendered it impossible to afford the defendants a fair trial. There was no abuse of discretion in refusing a continuance oh the alleged ground of public excitement.
Another ground of the motion for a continuance was, that, prior to the call of the special term and of the final employment of the attorney, an important case in which the movants’ attorney was an attorney and also a party was assigned for argument to be heard in the Court of Appeals on July 17, and that movants “do not
The challenge to the array was as follows: “ Come now the above-named defendants, . . and challenge the array of the jury about to be put upon them . . and say that said array should not be put upon them, for the following reasons, to wit: 1. Said array was not drawn to serve at this special term of this court, but was drawn to serve at the February adjourned term, 1930, of this court, which latter term has expired. 2. Said array so drawn for the February adjourned term, 1930, of this court has not been ordered by the judge of this court to serve' at this special term of this court. 3. No precept was issued to the sheriff of this county or his deputy to cause said array to be summoned to serve at this special term of this court, and it was not fairly or properly impaneled. 4. Said array was not summoned by the sheriff or his deputy ten days before this special term of this court convened, as required by sections 827 and 856 of the Penal Code of Georgia, 1910, as shown by the minutes of this court on page 598 of Book 26 of the minutes of the superior court of Polk County, which shows that said array was drawn on July 5, 1930, less than ten days before this special term convened.” At the time the paper was filed the judge made the following order: “The following, named persons were drawn to serve at the February adjourned term of Polk superior court, pursuant to-and in conformity with an order passed by the judge thereof calling a special term of Polk superior court. Said order dated July 5th, 1930¿ and entered on
The Penal Code, § 796, declares: “The judges of the superior courts may, in their discretion, hold adjourned terms of said courts in every county within their respective circuits, when the business requires it to close the dockets, and may, in the exercise of a sound discretion, cause new juries to be drawn for the same, or order the juries drawn for the regular term‘to give their attendance upon sueli adjourned terms; and such judges are authorized to hold special terms of said courts for the trial of criminals or for the disposition of civil business, either or both, in any county of their circuits, at discretion, and to compel the attendance of grand or petit jurors, either of a previous term, or to draw new jurors for the same, according to the laws now in force.” This section of the Code is in the language of section 1 of the act approved December 24, 1890 (Acts 1890-1891, vol. 1, p. 74). The language, “according to the laws now in force,” refers to former statutes as codified in the Code of 1882. That Code contains among others, the following: “3910 (d). Grand and traverse juries, how selected. Commissioners in each county in this State, appointed by the presiding judge of the superior court, and constituting the jury commissioners, shall revise the jury list, and shall select from the books of the tax-receiver upright and intelligent men to serve as jurors, and shall write the names of the persons so selected on tickets, as required by law. It shall be the duty of said jury commissioners to select from these a sufficient number, not exceeding two fifths of the whole number, of the most experienced, in.telligent, and upright men, to serve as grand jurors, and the jurors left after such second selection shall constitute traverse jurors. § 3910(e). Jury-boxes, how made up. Said jury commissioners shall place the tickets containing the names of grand jurors in a .bpx to be provided at the public expense, which box shall contain
In Williams v. State, 69 Ga. 11-27, referring to the precept mentioned in the foregoing sections of the Code, this court said: “Under our law, it [precept] is a very simple thing. It must contain the names of the persons drawn, and that is all the statute seems to require. Code, § 3913. When the clerk hands that list to the sheriff, it is his duty to serve the persons named. We presume this was done. 34 Ga. 270. Nothing to the contrary appears of record here. It is doubtful whether it be important to enquire about such matters at all. They relate, it appears, not to the securing of a fair and impartial jury for the defendant as much as to the mode of bringing the jurors to the court, and equalizing,
The first special ground of the motion for a new trial sets forth the following: “During the argument of the case by Hon. Homer Watkins for the State the following colloquy occurred:
‘Mr. McRae: The defendants object to the statement made by counsel for the State, to the effect that the large crowds of people who have attended this court under these extraordinary condi: tions—
.‘Mr. Watkins: I didn’t say that.
‘Mr. McRae: I beg your pardon — have come here expecting the jury to do justice in this case, on the ground that such statements are made solely for the purpose of bringing to the minds of the jury the fact that numerous people have attended this trial, and of the great public excitement over this trial, and made for the purpose of influencing the jury against these defendants by referring to the presence of a large body of citizenship of this county; and I move that a mistrial be declared in this case by virtue of said remarks, which is highly prejudicial to these defendants.
‘Mr. Watkins: In the first place the remarks he has set forth here are not the remarks I made, and whatever remarks I did make I freely withdrew them and apologize to the court and jury for having uttered them, as not actuated by any improper motive at all. The remarks I did make was wholly different from what my brother has set forth. I want to put in this' as the remarks made to the jury: The great number of people in attendance at this trial are not here through vengeance, not through hatred or envy or with any hostile intention toward the accused, but merely to see whether or not justice will be meted out and the plaintiffs and their families protected. I withdraw those remarks. Those are the remarks I made; I withdraw them and I am sure they will have no effect on the jury.
‘Mr. McRae: I object to the remarks admitted to have been made by’counsel, on the grounds that they were made for the purpose of prejudicing the minds of the jury against these defendants. It is wholly unfair to the defendants; and therefore I move for a mistrial on the grounds that they have prejudiced the minds of the jury against the defendants.
*810 ‘Mr. Watkins: I withdraw all remarks with reference to that, and apologize to the court and the jury and the accused, and the jury will be instructed not to consider them at all.
‘The Court: I will take care of that; you just handle what you want to do about it. It becomes the duty of the court in the trial of the case to guard the arguments and pass on the motion that has been made in this case by counsel for the defendants. In the first place, the remarks having been withdrawn and apologized for by the counsel for the State, I overrule the motion to .declare a mistrial, and I desire to go further than that, in order that a fair trial may be had, and that one may be had upon the law and the evidence in the case, eliminating everything else; and I now instruct you, gentlemen, that any arguments about people coming to court or what they think about the trial or what they wish about it is absolutely irrelevant and has nothing to do with this case, and is entirely withdrawn and ruled out, and you are instructed to give it no weight whatever. I am making this emphatic, because under the ruling of the Supreme Court, and my sense of what is proper, I have to do this; and as far as I am able to do it by instructions to you, that is withdrawn; and if censure should be used, I now reply to that; in view of the fact that it is withdrawn, I do nothing more than to say that it is improper, irrelevant, and having nothing to do with the ease, and you are to give it no consideration whatever.’
“Movants say that the court erred in refusing to declare a mistrial in said case as requested by their attorney, because the statements made by counsel for the State as above set forth in the hearing of the jury greatly prejudiced the minds of the jury against the movants and influenced them in finding against the movants in said trial, and that such remarks were such as would naturally tend to influence the minds of the jury against the movants, notwithstanding the apology of counsel and the instructions of the court, and that said remarks rendered it necessary, to the ends of justice, that a mistrial be declared, and that the failure of the court to declare a mistrial in said case resulted in the movants being convicted upon a trial that was not fair and impartial, and that they should be granted a new trial.”
The remarks of the attorney were improper; but in view of their withdrawal and the apology of the attorney and the remarks of the court, there was no error in refusing to grant a mistrial.
“Mr. McBae: I move for a mistrial in this case, on the grounds that counsel for the State is arguing that 'here is the widow, sitting here with a seven-year-old invalid on her lap.’ There is no evidence of that. That is also improper. There is no evidence that there is such a child, and the argument is improper.
“Mr. Watkins: I was under the impression that Mrs. Jones testified that there were two children.
“Mr. McBae: There isn’t anything about it being an invalid.
“Mr. Watkins: I withdraw that remark.
“The Court: Gentlemen of the jury, T instruct you again that you are to decide this case according to the law and the evidence, and all other matters are irrelevant and improper; and I shall Uom now on deal with this matter on my own motion if counsel gets out of the record. I shall not wait for counsel to do it, and I shall ask counsel to argue from the law and the evidence and nothing else. That is the kind of a trial I am trying to administer in this case. That is ruled out, about the child and the widow; it has nothing to do with the case.
“Mr. Watkins: Does your honor hold that I can not refer to the fact that there is a widow?
“The Court: I am dealing with it as a whole, not in part. I am saying that the fact that there is an invalid child is improper, I think. Argue the case according to the evidence.
“Movants say that the court erred in failing to declare a mistrial upon motion of their attorney, based upon the remarks of counsel for the State as above set forth. That said remarks were made for the purpose of prejudicing the minds of the jury against movants, and did prejudice their minds against them, and resulted in movants being convicted upon a trial that was unfair; and movants say that they are entitled to a fair and impartial trial, and this they have not had.”
For reasons stated in the preceding division there was no error in overruling this motion for a mistrial.
The evidence was sufficient to sustain the verdict against both defendants, and there was no error in refusing a new trial.