54 S.E.2d 142 | Ga. Ct. App. | 1949
1. "A good statement upon the practice question now under consideration is found in Southern Railway Co., v. Brown,
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2. A charge of the trial court on the subject of good character in a criminal case as follows — "The jury have the right to consider the good character of the defendant, not merely where guilt is doubtful under the testimony in the case, but where such testimony of good character may of itself generate this doubt. Good character is a positive, substantive fact, and may of itself be sufficient to justify a reasonable doubt as to the guilt, or, considered with other evidence in the case, it may be sufficient to create such a doubt. If a reasonable doubt as to guilt exists, the jury should acquit. Nevertheless, if the jury should believe beyond a reasonable doubt that the defendant is guilty as charged, they should convict, notwithstanding evidence as to general good character" — is approved as a proper charge on the subject. See Shropshire v. State,
3. Where on the trial of a criminal case the defendant makes an admission which tends to show his guilt, but does not make a confession, a charge on the subject of confessions is unauthorized, and the refusal of the trial court to charge on request § 38-420 of the Code, dealing with the amount of weight to be given admissions and confessions, is not error.
4. The assignment of error contained in special ground 4 is not error, for the reasons set forth in the corresponding division of the decision.
5. The general grounds are not passed upon, as the case is again to be tried.
1. Special ground 1 contends that the trial court erred in overruling the objection made by the defendant's counsel to a statement, in the argument for the State by the solicitor-general to the jury, as follows: "If defendant's counsel wanted to prove *430 the good character of the defendant he could have put up witnesses to prove it: he had some summonsed here; one came to me and told me he was summonsed here to testify as to the defendant's character and if they were not going to use him he wanted to go." The objection of counsel for the defendant was: "Your Honor, he has gotten out of the record, and I object to it on the ground that it is irrelevant and prejudicial to the rights of the defendant and highly inflammatory." The court's ruling was as follows: "The jury will remember what the evidence was. I don't remember. The objection is overruled." Code § 81-1009 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 counsel, 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."
The remarks of counsel for the State here were outside the record. There was no evidence that witnesses had been summonsed by the defendant to testify as to his good character. There was no evidence that a witness came to the solicitor-general and told him that he had been summonsed to testify to the defendant's good character, and that if they were not going to use him as such witness he wanted to go. These remarks were prejudicial. The jury could have inferred from them that the witnesses were so summonsed, and that they were not used because they would not testify as to the good character of the defendant. The jury could have inferred from this that the defendant did not have a good character. In Brooks v. State,
The decision here is controlled by Brooks v. State, supra, wherein this court interpreted the meaning of the answers to the certified questions in that case made by the Supreme Court. The ruling of the trial court is reviewable in this court, although when the improper argument was made counsel for the opposing party only objected to the argument, and rested simply on the objection. The ruling thereon constitutes reversible error. *432
2. Special ground 2 contends that the trial court erred in failing to charge the jury fully on the law of character of the defendant, which was relied upon by the defendant to create a doubt in the minds of the jury. The court charged in this connection: "The jury have the right to consider the good character of the defendant, not merely where guilt is doubtful under the testimony in the case, but where such testimony of good character may of itself generate this doubt. Good character is a positive, substantive fact, and may of itself be sufficient to justify a reasonable doubt as to the guilt, or, considered with other evidence in the case, it may be sufficient to create such a doubt. If a reasonable doubt as to guilt exists the jury should acquit. Nevertheless, if the jury should believe beyond a reasonable doubt that the defendant is guilty as charged, they should convict, notwithstanding evidence as to general good character." This charge fully meets the requirements inShropshire v. State,
3. Special ground 3 contends that the trial court erred in failing to charge, upon request, Code § 38-420, as follows: "All admissions shall be scanned with care, and confession of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction." The evidence upon which the request to charge was predicated is that of the sheriff as follows: "Moncie Johns was *433
put in jail in Nahunta. He made a statement before I arrested him and one after I arrested him. They were both made freely and voluntarily. He first told me he didn't know anything about it; he didn't even go to the fishing camp that Sunday. And after I put him in jail, maybe the next morning, he told me they did go down there and got drunk and got the stuff and carried it back to Waycross." A confession is an admission of the main fact in a charge of crime, without any exculpatory explanation. SeeAdsmond v. State,
Since the statement attributed to the defendant here amounts to no more than an admission, a charge on the law of confessions was unauthorized. See Porter v. State,
4. Special ground 4 contends that the trial court erred in charging the jury as follows: "Gentlemen, it is necessary to fix the penalty. You could not find him guilty of a straight misdemeanor. You would have to find him guilty and fix the punishment, and then add the recommendation to that. The form of your verdict should be: `We, the jury, find the defendant guilty and fix his sentence at, not less than so many years nor more than so many years, and then if you wish that he be punished as for a misdemeanor then add to that, and we recommend that he be punished as for a misdemeanor.'"
The excerpt from the charge here complained of was given to the jury after they had been fully charged, had retired, and *434 had returned a verdict in the court as follows: "We, the jury, find the defendant guilty of a misdemeanor, and recommend 1 year suspended sentence." The trial court in refusing to accept this verdict charged as complained of in the foregoing excerpt.
Thereupon the jury again retired and returned a verdict as follows: "We, the jury, find the defendant, Moncie Johns, guilty this 21st day of January, 1948, and recommend not less than 1 year and not over 1 year, and recommend it be reduced to a misdemeanor." Obviously this is the verdict intended in the first instance. In Smith v. Pilcher,
5. Since the case is reversed for the reason set forth in the 1st headnote and 1st division of this opinion, and must be tried again, the general grounds of the motion for new trial are not considered.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.