163 Ga. 406 | Ga. | 1926
(After stating the foregoing facts.)
Upon being furnished with a fist of the panel of jurors as provided by section 997 of the Penal Code of 1910, C. G. Rawlings challenged the array. The trial judge overruled’ the challenge, and exception is taken to this judgment. Summarizing the facts upon •which the challenge was based, it appears that a jury was regularly drawn at the preceding September term, for the March term, 1925, of Johnson superior court and at the latter term was regularly empaneled in accordance with the provisions of section 857 of the Penal Code. The traverse jurors were discharged on Saturday, March 28, 1925, and the trial judge drew 57 jurors to appear and serve on March 30, 1925, to which date the court took a recess. The defendant’s case was assigned for trial on March 30, 1925. When the court reconvened in accordance with the order taking the recess, and upon the filing of a bill of exceptions to the judgment overruling a motion made by the defendant for a change of venue, the court discharged the 57 tales jurors who had been drawn for the purpose of being used in the trial of the defendant, and took a recess until the third Monday in June, and then recessed until the third Monday in August, 1925. The court not 'having finally adjourned, on Thursday, August 14, 1925, the judge drew a new panel of 100 “traverse tales jurors,” whom he ordered to be summoned to attend court on Monday, August 17, 1925, and from this 100 jurors the panel put upon the defendant was taken, to the exclusion of all the jurors regularly, drawn for the term and ‘all the tales jurors drawn on March 28, 1925. The complaint of the plaintiff in error is that the presiding judge had no right in
However, regardless of this, when the court reassembled after a temporary recess, and before the qualification of the jury became important or was in order, the defendant moved a change of venue, and upon the overruling of his motion filed a bill of exceptions, which operated to continue the defendant’s trial until an adjudication upon the bill of exceptions. As the court could not foresee the exact length of time which would elapse before a determination of the issue raised in the bill of exceptions, it was entirely proper for the court to discharge the 57 talesmen who had been summoned in anticipation of a trial on March 30, which was indefinitely postponed. The court then ordered an adjournment until June, and then, doubtless because the trial upon review had not been completed, again adjourned until August 17, 1925, and thus was constituted an adjourned term of the court to begin on August 17, 1925, in which the presence of jurors might be necessary; and accordingly, on August 14, the judge drew a jury of 100 who were summoned to appear for duty at this adjourned term of court set for August 17, 1925. Did the court have the power to thus constitute a jury for the trial of the defendant? We think that the ruling of this court in Woolfolk v. State, 85 Ga. 69 (11 S. E. 814), conclusively answers this question, and is controlling. In that ease this court construed section 3942 of the Code of 1882, and-applied it to a state of facts identical with those presented by the challenge to the array in this case in respect to the fact that the
In passing upon this question this court said: “The power of the judge, under the circumstances above stated, to draw a jury and have the jurors summoned and put upon the defendant, is the only question made by the defendant upon this branch of the case. If the judge had the power to draw this jury, he was right in overruling the challenges; if he did not have the power, he should have sustained them. The several sections of the code which regulate the drawing'of juries provide for the drawing of a jury in almost every conceivable case where one is needed; and the general tenor of the code is to give power and authority to the judge of the superior court to draw and summon juries whenever the business of the court requires it. We think that, under section 3942 of the code, the trial judge, under the peculiar facts of this case, had power and authority to draw the jury as he did. That section is as follows: ‘ Whenever the session of any court of record in this State shall be prolonged beyond the week or period for which juries were drawn at the close of the preceding term, as by law provided, or the judge anticipates that the same is about to be so prolonged, or from any other cause such court has convened or is about to convene, and there have been no juries drawn for the same, it shall and may be lawful for such judge to draw juries, so many as may be necessary for such court, and cause them to be summoned accordingly, in the manner prescribed for drawing juries at the close 'of the regular terms of such courts respectively.’ Here was a court which had met for the express purpose of trying the defendant. The juries were properly organized at the commencement
“It may not be quite obvious that the drawing of this jury falls within the exact letter of the statute, but that the spirit and meaning of the statute extend to it is manifest. Most courts would still hold that even if it was error for the judge to draw and summon the jury as he did, it was not such an error as would work a reversal of the ease. In Rafe v. State, 20 Ga. 60, it was held by this court that ‘the statutes regulating the selection, drawing and summoning of jurors are intended to distribute the-jury duties among citizens of the county, provide for rotation in jury*420 service, and to insure at each court the attendance of persons to serve on juries, and are no part of a regulation to secure to parties impartial juries.’ This decision has been approved and followed by many courts and text-writers. In 1 Thompson on Trials, § 34, p. 32, it is said: ‘Statutory provisions respecting the drawing of the panel are generally regarded as directory merely, so that irregularities therein, unless plainly operating to the prejudice of the challenging party, form no ground for challenging the array.’ See also authorities there cited. The same principle is announced in Thompson and Merriam on Juries, § 143. See also Colt v. Evans, 12 Conn. 242; Burlingame v. Burlingame, 18 Wisc. 299; State v. Knight, 61 Mo. 373; State v. Pitts, 58 Mo. 556; State v. Massey, 2 Hill (S. C.), 379. And see Friery v. People, 54 Barb. (N. Y.) 319, 336, where the reasoning in Rafe’s case, supra, is quoted and approved. It is not claimed that the defendant was injured or prejudiced in any way by putting this jury upon him. There is no complaint that the jury which tried him was not as fair and impartial as any jury which could have been obtained in the county. . . Why should this long, laborious and expensive trial be gone over again because the original panel sworn at the beginning of the week was not put upon the prisoner ? . . With courts generally, as we gather from the authorities, the great and controlling question is, did the accused have a fair trial by an impartial jury? If so, the law has been complied with, and he has no right to complain that his challenges were not sustained.” We are aware that there are some decisions of this court which indicate that challenges to the array should be sustained upon purely technical grounds, upon the theory that one charged with crime should have accorded to him every right provided by law in the strictest conformity with every regulation affecting form as well as substance; and the writer is in accord with this view as so eloquently expressed by Mr. Chief Justice Bleckley, notably in the case of Cochran v. State, 62 Ca. 731, 732. However, in the present instance, since this court, in Woolfolk’s case, applied the provisions of the Penal Code to a condition practically identical to the one before us, there can be neither difficulty nor doubt in holding that the trial judge did not err in overruling the challenge to the array.
As will be seen from the statement of facts, the fourth, fifth,
This court has several times held that where several defendants are all charged as principals in the first degree, one or more of them may nevertheless be convicted even though the evidence only authorized a conviction of the accused as principal in the second degree; and has further held that the guilt of the principal in the first degree must be shown, in order to authorize the conviction of one accused of murder as principal in the second degree. Under the latter rulings, inasmuch as the evidence showed that Rawlings made no assault whatever and had no gun, it devolved upon the State in the present case to establish the fact that Tanner as a principal in the first degree was guilty of the murder alleged. So that the evidence to the admission of which exception is taken was admissible in this case to prove the guilt of Tanner as an essential prerequisite to the conviction of Rawlings for his participation in the alleged murder, in that (although he did no act directly contributing to the death of Tarbutton) he was still present aiding and abetting in the commission of”the homicide. It has always been held by this court that upon the trial of an accessory before the fact the guilt of the actual perpetrator of the alleged crime must be shown. The guilt of the principal in the first degree in such cases may be established by the record of the trial and conviction or plea of guilty of this principal in the first degree, or it
As to the admissibility of the evidence for the reason first stated, chis court ruled, in Byrd v. State, 68 Ga. 661: “The acts and conduct of one accomplice during the pendency of the wrongful act, not only in its perpetration, but also in its subsequent concealment, are admissible against the other. So also are his sayings pending the common criminal enterprise.” In that case Byrd and Betts were charged with larceny from the house. The evidence in the record showed that Byrd and Betts were together at the place and time when the larceny was alleged to have been committed; that they were in the store and near the place where the meat alleged to have been stolen was located; that Betts was seen to leave the store with a sack and something in it, and place it in a wagon in which both he and the accused returned home after night; that this occurred on Saturday evening, and on Monday morning, when officers with a search warrant were approaching the house of the defendants, Betts was seen to leave and go around his house with something under his arm wrapped in a cloth. As to this, Mr. Justice Speer said: “Prima facie under this proof, and during the pendency of the wrongful act, not only in the perpetration but in the effort at concealment, the act and conduct of one accomplice is admissible against the other, as are also his sayings pending the common criminal enterprise. They go to establish his guilt; and if the other is shown to have aided and abetted the offence, they are evidence of his guilt, for the act of
In Rawlins v. State, 124 Ga. 31 (12) (52 S. E. 1), this court held: “When in the trial of a murder case there is evidence tending to show that the accused on trial entered into a conspiracy to slay the deceased and others, the acts, conduct, and sayings of any of the conspirators while the conspiracy was in progress, and before the crime was committed, are admissible as evidence, as well as an
In Kettles v. State, 145 Ga. 6 (88 S. E. 197), it was held: “Where two persons are jointly indicted for murder, each may be convicted upon evidence showing that he was either the absolute perpetrator of the crime or was present aiding and abetting the other in its commission. As principals in the first and second degrees in the crime of murder are punished alike, no distinction between them need be made in the indictment.” There was evidence in this case, that, while Rawlings was present, Tanner fired the shot which caused the death of the deceased. It devolved upon the State to satisfy the jury that in his presence Rawlings was aiding and abetting Tanner in the commission of the crime, for mere presence without participation in the crime does not authorize an inference of guilt. The evidence to which objections were made, with which we are now dealing, tended to raise an inference explanatory of Rawlings’ presence at the time that Tanner shot, and might authorize the jury to find that Rawlings participated in the act of Tanner, and the intent with which the shot was fired (in case the jury found that the shooting was not accidental). Such a finding on the part of the jury would have authorized the conviction of Rawlings as a principal. That the State must prove. the guilt of the principal in the first degree, in order to authorize the conviction of another jointly indicted of the offense of murder as principal in the second degree, was held in Jones v. State, 64 Ga. 697. In that case it was held that “The conviction of one charged with crime as principal in the-second degree is contrary to law where there is no evidence of the guilt of the principal in the first degree.” Under the ruling in Kettles v. State, supra, and similar cases, one may now be convicted of murder as principal in the second degree, without the nature of the degree of the defendant’s participation in the crime being alleged in the indictment; but this rule as to pleading does not affect the rule as to the sufficiency of the evidence which has just been quoted from the Jones case. As ruled by Mr. Chief Justice Warner in that case, the guilt of the principal in the first degree must appear either by the introduction in evidence of the record of his conviction or otherwise, or the conviction of one whom the State contends to be a principal in the second degree can not be sustained against the
the reasons given in the next preceding division it was not error to admit the testimony of Mell Brantley, as complained of in the ninth ground of the motion for a new trial, nor to submit to the jury the photograph identified by Brantley, of which complaint is made in the tenth ground. A different question might be presented had a different objection been offered, based upon one of the rulings relating to the introduction of evidence of experiments. The objection to Brantley’s testimony, as shown in the ninth ground, was “that the statements of said witness were hearsay evidence, based on hearsay evidence, being based upon statements made by Tanner at the inquest the day after the homicide, and not in the presence of the defendant Rawlings.” The objection urged to the introduction of the photograph was based upon hearsay evidence, etc., following the same language as just quoted.
We are of the opinion that the court erred in admitting in evidence the testimony of Heyman Joiner, to the effect that over thirty years before the trial the defendant Rawlings had stated to the witness that he had swapped places in Johnson County with the Tarbutton boys, who gave him $10,000 and paid every dollar of it in two years. The objection based upon the irrelevancy of this testimony should have been sustained. But inasmuch as, after a very painstaking study of every feature of this case, it does not appear to us that this evidence had a tendency to injure and damage the defendant or could have damaged him in any way, this error would not authorize a reversal of the judgment overruling the motion for a new trial.
The court did not err in overruling the objection to the admission of certain insurance policies of which complaint is made in the twelfth ground of the motion for a new trial. As appears from the statement of facts, these policies were delivered by Raw-lings, under an order of the judge of the superior court of Washington County, to L. B. Holt, of Sandersville, Georgia, as a receiver duly appointed by that judge to take charge of all of the money, effects, and papers of the defendant Rawlings in a civil ease pending in said court. The voluntary delivery of the policies by Rawlings was not made with reference to the instant criminal case. The policies were produced in the trial now under review
In ground thirteen of the motion substantially the same objections were made as those presented to the admissibility of the evidence dealt with in the second division of this opinion. Eay Huie testified to the conversation in jail, set forth in the statement of facts. The objection to this testimony was “that Tanner was not on trial, and no statement made by Tanner was admissible as evidence against the defendant Eawlings, in which Eawlings did not consent and concur; and because the declaration of the alleged coconspirator Tanner, made after the conclusion of the enterprise, was admissible only as against himself, and not as against the defendant Eawlings; and because the defendant Eawlings did not concur or assent to the statement of said Tanner, but on the contrary expressly denied the same.” For the reasons already stated in the second division of this opinion, the admission of this testimony was not error so far as the last two reasons for the rejection of the testimony are concerned; and the first objection as stated is without merit, because the proposition “that no statement made by Tanner was admissible as evidence against the defendant Eawlings, in which Eawlings did not consent or concur,” is not sound as matter of law. Many statements made by Tanner with reference to the case, in which Eawlings did not consent or concur, would be admissible under well-settled rules of law,- and the objection did not so specify in what particular respect the evidence was illegal and inadmissible, other than that Eawlings did not consent and concur, as to enable the trial court intelligently to pass upon the point.
The writer is of the opinion that it was error to instruct the jury at all on the subject of confessions, inasmuch as the testimony of Eay Huie can not be construed as more than an inculpatory admission; and that such error, under the previous rulings of this court, requires the grant of a new trial. Dumas v. State, 63 Ga. 601 (5); Covington v. State, 79 Ga. 687 (7 S. E. 153); Fletcher v. State, 90 Ga. 468, 471 (17 S. E. 100); Nightengale v. State, 94 Ga. 395 (21 S. E. 221).; Powell v. State, 101 Ga. 9 (4), 18 (29 S. E. 309, 65 Am. St. R. 277); Lee v. State, 102 Ga. 221 (29 S. E. 264); Davis v. State, 114 Ga. 104 (8), 109 (39 S. E. 906); Owens v. State, 120 Ga. 296 (3) (48 S. E. 21);
Judgment affirmed.
