10 Ga. App. 403 | Ga. Ct. App. | 1912
1. Jerry McCullough, a negro man, was convicted of assault with intent to rape, the alleged victim being a white woman. His motion for a new trial was overruled, and he brings error. In view of the fact that we have decided that another trial should be granted on one of the special assignments of error, it is unnecessary to state the evidence. It is not improper, however, to say that the evidence for the prosecution makes a clear case of assault and battery, but leaves in doubt the felonious intent charged. But the intent with which an assault and battery was made is peculiarly a question to be determined by the jury, and, under the repeated rulings of the Supreme Court as to the question of intent in cases where black men assault white women, with special reference to racial differences and the well-established customs which emphasize these differences, we do not feel authorized to disturb the verdict as being without any evidence tending to establish the felonious intent with which the assault and battery was committed. Carter v. State, 35 Ga. 265; Jackson v. State, 91 Ga. 322 (18 S. E. 322); Watkins v. State, 68 Ga. 832; Darden v. State, 97 Ga. 407 (25 S. E. 676); Dorsey v. State, 108 Ga. 477 (34 S. E. 135). The doubt, however, on this point, which would unquestionably be sufficient to acquit of a felony but for the decisions above cited, and which, even in the light of these decisions, under the evidence in this case, arises as to the intention of the accused in laying his hands on the woman without actual violence, and in desisting immediately upon the show of resentment on her part, accompanied by the declaration that he intended no harm, makes us the more readily grant a new trial on the assignment of error hereafter considered. If the evidence demanded the verdict as rendered, we would treat this error (which we deem presumptively to have been prejudicial under the facts of this case) as harmless.
2. Exceptions are taken to the refusal of the court to give certain instructions requested, relating to the necessity for showing by evidence the existence of the felonious intent charged in the indictment. These requests substantially state the law and make a concrete application to the facts; but.an examination of the general charge given to the jury shows that the material portions of the instructions requested were substantially given, and were
3. Objection is also made to the omission of the trial judge to define the offenses of assault and battery and of simple assault. Under the evidence, the charge should have defined the offense of assault and battery; but the judge distinctly told the jury that the accused would not be guilty of the felonious assault charged, unless, at the time he laid his hands upon the female, he intended to commit rape, but would be guilty of the offense of assault and battery; and this instruction was sufficient, in lieu of any more specific definition; for the jury could not have failed to understand, from this charge, that the unlawful laying of the hands upon the female by the accused, without a felonious intent, was in law an assault and battery. The indictment charging' an assault and battery with a felonious intent, and the evidence showing an assault and battery, the trial judge could not properly have charged on the subject of simple assault.
4. Beferring to the defendant’s statement to the jury, the judge charged as follows: “You may believe it in preference to the sworn testimony, provided you believe it to be the truth.” . It is objected that the use of the word “provided” was an improper restriction of the unlimited right which the statute gives to the jury to believe the statement in preference to the testimony. We do not construe the statute to give to the jury this unrestricted right. The statute in terms says that the jury “may believe” the statement “in preference to the sworn testimony.” Penal Code (1910), § 1036. It is a matter of discretion with the jury; but it would be absurd to claim that it was intended to give the jury’the right to credit the statement unless they believed it to be the truth of the transaction; and the use of the word “ provided ” did not restrict any legitimate right of the jury.
5. Several objections were made to the admission of testimony, but it is not deemed necessary to consider these objections, as they will hardly occur on the second trial.
6. We come now to the assignment of error upon which we think, under the facts of this case, the accused should be granted another trial. As before stated, the evidence did not demand the finding. It was doubtful as to the felonious intent. The jury, if the evidence had been cledr as to the intent, would promptly have
The manner in which the sentence was imposed was unusual. It was in striking variance from that orderly judicial procedure which has generally characterized the conduct of judges in imposing sentences in cases of such gravity. In a practice of thirty-five years, twelve years of which was as prosecuting attorney, the writer never knew the presiding judge'to impose a sentence of such severity in a case of such grave character without first asking counsel and accused if there was any reason why sentence should not then be imposed, and he has never known the presiding judge in the slightest degree to interfere or prevent the full exercise of the right of the accused to poll the jury after the verdict had been published or by word or deed to impair the possible value in the exercise of such right. This very unusual conduct of the judge must therefore have made a strong impression upon the mind of each one of the jurors, for it is altogether probable that they had never before
Practically, the act of polling the jury has rarely resulted beneficially to the accused. In fact, in the writer’s experience above stated, he has never seen it result in any practical benefit; but, if there ever was a case in which it might possibly result in benefit, it would be a case where, under the evidence, there was doubt as to the felonious intent, and where the jury had for several hours considered the evidence before arriving at a satisfactory conclusion as to the existence of such intent; for it must be conceded that nothing short of grave doubt would have caused hesitation and a delay of several hours in arriving at a verdict. The law of this State places a high value in criminal cases upon the right of the accused to poll the jury. In civil cases the right is discretionary with the presiding judge; but in criminal cases polling is not a privilege to be granted in the discretion of the judge, but is a legal right, and it has always been held to be a material and reversible error to refuse the free exercise of this right. Tilton v. State, 52 Ga. 478; Russell v. State, 68 Ga. 785, 788; Blankenship v. State, 112 Ga. 402 (37 S. E. 732). Did the judge deprive the accused of this legal right or impair its value? For the reasons given above, we think that he did, because it made the subsequent exercise of the right which he granted worthless. The polling of the jury amounted to nothing, in the face of what was necessarily implied by the hasty and severe sentence. Besides, no opportunity was given to counsel for the accused to demand the right before the sentence was imposed.
The recital in the bill of exceptions is that “immediately” upon the reading of the verdict the sentence was passed. The word “ immediately ” means “ instantly,” “ at once.” Standard Dictionary. And when the judge verifies this recital in the bill of exceptions, it is equivalent to stating that “instantly,” “at once,” upon the reading of the verdict, he imposed the sentence.
In support of the views here stated we cite the ease of Robinson
We think, under the principle here decided, that the accused in this case must be granted a new trial. In courts of justice, where order and deliberation should characterize every step of judicial procedure, no necessity should be created for an unseemly contest between the presiding judge and counsel for the accused. The attorney should not be required to be acutely on the alert to precipitately, and immediately upon the reading of a verdict, jump to his -feet and demand the right to poll the jury, for fear that the
Judgment reversed.