Reece v. State
208 Ga. 165
Ga.
1951
Check Treatment

*1 plaintiff. Bowden,, J. C. William,

Grant, Grizzard G. Wiggins, Smith, Grant, dt defendants.

REECE v. THE STATE. Argued May 11,

No. 17462. Decided June Rehearing denied July 10, 1951. *2 Irwin Kimzey, R. Hamilton Kimzéy, Kimzey, Herbert B. plaintiff in error. Eugene Cook, Attorney-General, Wayne, C. Solicitor-Gen- Jeff eral, and Abit Massey, contra. (After Presiding stating foregoing Justice.

Atkinson, facts.) qualified As to whether on' females are to serve juries, in answering question traverse aid be found would in article section paragraph 2 Constitution of 1945 (Code, Ann., 2-5102); 79-207, 102-102; 59-106, 59-112, § §§ also v. Pollard 148 Ga. 447 Powers (4) (b) 195); Cady question will But determination of this *3 though challenge here be made. Even that a to it be conceded array judge proper attack, would be a mode and that the might agreed ruling, yet, have erred his under the statement facts, injury appears that, there no defendant. to the It did jurors yet of them females, 100 four were two drawn, by service appear and other two were excused from more panel or appeared upon the court. No female of 48 put upon any question raised accused, nor was to going challenge 59-803, under array, to the Code § impaneled, or properly put upon show that him were not those might have though there ought put upón not to be him. Even drawn for ineligible jurors been box and names of properly panel the accused was yet, put upon where the service, put upon He had impaneled, injury. the accused no suffered 59- Code required under competent jurors, him 48 or more as § court, brings a case to this plaintiff in error 801. Where cause. injurious to his upon him which is burden to show error is 619 State, 202 Ga. City 72; Hall v. Atlanta, Brown v. 234). (44 (2), S. E. (2) 21 Bridges 103 case of

. put panel There the case. distinguishable from instant is upon prisoner drawn, selected, had not been summoned provided by the manner law. require elaboration.

Headnotes no charge: “Gentlemen, following Exception is taken to the jury impeach to to the a witness is show to satisfaction may be im witness unworthy that such is of belief. A witness proof by 'of peached by by disproving facts testified to matters contradictory by him to previously made statements as to case, by to the evidence testimony relevant his to by general proof be his bad He sustained character. deter general evidence to good effect of the character, the be by mined jury.”

This contains an erroneous Where statement of law. sought impeached witness to by contradictory be statements by proof general by character, bad he be sustained proof general good character. 38-1804. Code, 38-1803, §§ sought But under impeached only where witness is to be 38-1802, by disproving testimony him, facts testified to his § by proof good cannot be sustained Miller character. (1), (21 52); Co., Western & Atlantic R. S. E. Bell v. State, (1), Surles v. Ga. 537 eyewitnesses to

In the two instant the State introduced testimony homicide, and other witnesses for the whose State taken as could be conditions the scene homicide at The ac- contradictory eyewitnesses. facts testified the jury. statement 'evidence, cused made introduced gen- seeking establish the There the State was no eyewitness. good Though either eral character of sought stated it that witness was erroneous so far as *4 be sus- by may impeached by disproving testified facts see how by general good character, yet we cannot proof tained of charged the court injured thereby. In effect the was accused the had been eyewitnesses State if evidence of the that, good proof of by they could be sustained disproved, well might the jury having charged, court so character. The eyewitnesses testimony of the the position that, have taken the gen- to their as disproved, the absence having been Accordingly, testimony. their good discredited eral character law, portion though the charge, this the misstatement connection, in Geer v. See, was favorable the accused. this citations; and Jones (2), (1) (18 citations. 2d, 844), and charge: “Now, gentle Exception following taken the exclusive men, charge I the and you, you by are made law sole have testified judges that credibility as to the of the witnesses take you will credibility passing upon and their case, case, of the into the and circumstances consideration all facts or want testifying, the their interest witnesses’ manner of oppor their and means interest, prejudice bias, any exists, if testified, the reason tunity knowing to which facts wit testimony, also ableness unreasonableness of legitimately the same personal credibility, nesses’ far so appear upon case.” the trial of this subject confusing, charge

This is not to the criticism it is argumentative, things it limits its consideration to those enumerated, that it minimizes effect of the defendant’s state phrase, “you take ment, See, mil into consideration.” connection, App. 663, in this Daniel v. E.S. require

These headnotes elaboration. testimony eyewitnesses The of the two a case makes unprovoked murder, jury and the authorized. amply verdict was

Judgment except All concur, Head, J., the Justices affirmed. who dissents. Justice, dissenting. As I construe

Head, recom- court dealt with in headnote The mercy mend “the laws and the evidence.” opinion authority ruling made, for the Wheat v. cites as (3). on the court in Wheat follows: “Un- provided punishment der the of this state it is that the law persons death, convicted murder be confine- shall trying penitentiary if the case shall ment for life determining, punishment . . And in what so recommend. all the facts you gentlemen may consider shall receive trial, by disclosed circumstances of the case as In defendant. all homicide the statement of evidence, *5 170 they right province

cases it is the of in the event jury, the for defendant, imprisoned convict the recommend to that he be life, or would mercy court, to recommend to the which mean he would life. question be sentenced for And the im- jury mercy whether will not recommend or life will or solely jury, prisonment is matter within the discretion of in There is no rule not or confined case. its governing with to the exercise dis- jury law reference upon question. you any reason cretion this should decide If recommend satisfactory any reason, to or without to yourselves, be imprisoned life, be then that would that the imposed the sentence and that would be binding upon the court have discretion in defendant. The court would upon the (Italics supplied.) matter.” (and writer so charge in the Wheat case correct

If the undue placed case it), charge present in the an then construes right recommend reference to their to with limitation on mercy. 945), State, 83 Ga. of Vann v.

If the case charge present court in the of the support be can said State, case of Hill v. yield must to the Vann case ruled: “The the court decision, wherein a full-bench which is of the as to whether discretion leaves it penitentiary life in imprisonment for recommend will circumscribed murder; they are not limited or person convicted prescribe any law rule whatever; nor does the any respect discretion. There ought to exercise may or this which the recom considering question jury, that the fore, a sympathies, governed by be mercy, mending should by the evidence in the case judgments, approved by their error.” announced it, The rule applicable to and the law also not been overruled. See Hill case has court this E.S. v. State, Cohen court decisions this conflict in the may be While there some vesting Assembly General the first act subsequent (see Long v. mercy juries in trial power Ga. 264; v. Regular Shaw 491; sub this court rendered Hill was the first decision case trial vesting passage present law sequently to the of our jury the make and should recommendation of controlling upon court. this court 2d, 831), Mims

In judge approved the trial recommendation make mercy have you recommendation “is a *6 find your you should verdict, and attach to in the event recommenda- You decline guilty may murder. so reason, you may with decline to do tion or without public may a matter of reason; you with or without a do so as decline you may policy prisoner, or sympathy or out of for policy absence of to do or on public so reason account of con- granting of it in case sympathy for the The accused. estab- guilt is after is grace viction a mere matter of comes in the as-.to lished. The Code leaves it discretion imprisonment pen- whether will recommend life itentiary murder; they are not person convicted of any respect whatever, nor does the law circumscribed ought may exercise prescribe rule this discretion.” judges not authorized to

Trial are limit restrict the mercy. to a of the defendant recommendation present limiting had the effect made case mercy, and this have limitation guaranteed fight the defendant denied substantial Con It difference makes no stitution laws this State. may have such a character

evidence been of as to demand can it be said that a guilty, verdict since in no case de guilty, without a recommendation of is verdict (57 Glover v. Ga. 1 as matter of law. manded (175 S. 582); E. Carter 101); Barfield 2d, 492); State, 205 E. Glenn v. S. 2d, Jones v. rights not be Substantial of a defendant should re lead away piecemeal because the whittled inescapable conclusion that the defendant viewing court to charged. guilty the ruling I from in head- foregoing reason dissent For the judgment of affirmance. 4, and from the note