*1
raise
issue
prematurity
special
in the absence of
demurrer
plea.
The judgment
Appeals
Court
All the Justices
Affirmed.
who n dissent.
concur; except Duckworth, C. J.,
Candler,
J.,
Justice, dissenting.
agree
majority
Candler,
do
I
ruling in
plain-
this case because I am of the opinion that the
tiff's petition
dispute
evidence
without
show
State-aid road
completed
here
had not
involved
been
opened to
Comple-
travel when the
cause
occurred.
declared
tion of such a road and
formally opening
to travel
precedent
right
condition
to the
bring
maintain an action
resulting from an
al-
injury sustained thereon and both
be
must
leged
proved
before
damages
there can be
recovery
re-
sulting therefrom. See Code
95-1712;
County
Dougherty
v.
Edge,
I am authorized to1state that Mr. Chief Justice Duckworth dissent. concurs
21697. SMITH THE STATE. Argued July 9, 1962 June 12, 1962 Decided Rehearing July 23, 1962. George William Kushinka, Wisse, Burke, plain- Walker D. tiff in error. M. Gautier, Jack J. Assistant West, General,
Wm. Solicitor Eugene Attorney Bubye Cook, General, G. General, Solicitor Jackson, Attorney General, contra. Assistant guilty Justice. Sammie Lee murder Smith, found
Grice, upon sentenced, assigned error a recommendation and *2 the motion trial. He the by his indicted denial of new was of grand July 1960, for the murder 10, of Houston County county Cooper superior the court of that Jerry and was tried in August on 1960. 25, and in elderly
The in home victim, man, an was found his dead of City Perry, County, of Houston the late afternoon the in neighbor. July 1960, partially His clad by body, the in considerable pajamas, lying on floor his bedroom with the coagulated leading from throat. Summoned to his blood coroner, scene were the law enforcement officers immediately upon The testified medical examiner. latter county en- extending trial cause of death a wound “pretty portion neck, by tirely upper across He resulted within good knife.” estimated that death had sized and 14 hours some seven and had occurred between minutes 13% 7:30 previous approximately at examination, his which p.m. July 10, 1960. being in sev- locality defendant first days
eral but later admitted preceding following crime persisted in Cooper he several with a stabbed times knife. He stabbing prompted the what this admission but his as to versions trial upon relied at the was self- varied. version which he mid- defense. In that at some between contended time night Sunday, 10, 1960, Cooper’s he went July dawn Cooper opened, house, him, entered door awakened knocked, his money received watch played him, cards with won his by to leave pawn; and that when about assailed room, and, Cooper finding with chair a knife hitting him and left. Cooper times picked up, cut other statement given His oral to officers version, burglary, trial, one of upon the State by relied urging that this the correct ver- robbery murder. ain upon losing money defendant’s his sion, State relied game presence card vicinity night, earlier Cooper’s cut at the time death, freshly house estimated possession Cooper’s window, screen from bedroom a statement Cooper’s shortly homicide, watch consistent with contention. defendant which was body to the evidence as victim’s Testimony documentary testi- physical homicide, at the when scene of found, facts paragraph, mony preceding as to the facts referred to constituted defendant and the admission and confession of the intro- the State. The defense evidence submitted activities evidence the defendant’s conduct and regarding duced killing immediately before and after conten- self-defense setting up an unsworn eyewit- there were tion, Apparently indicated. already nesses to the homicide. jury’s
Following guilty verdict and sentence court, defendant filed his amended motion for new consisting general special grounds. six *3 Number of the special grounds, urging four refusal of court permit the questions counsel, to be asked by his disapproved, judge reciting the trial that mo- “there was no request tion or counsel movant in by open propound for questions to movant during the of course his statement to court and In the jury.” brief filed in the behalf acknowledged ground counsel that, foregoing reason, for the this urged. cannot be not be considered. Accordingly, will Special ground 6, charging that averring court erred in “proof corpus delicti, proof has of crime is, a alleged been may as indictment committed someone by be sufficient corroboration a free voluntary confession; of you charge but I that in all cases the corroboration amount of of a confession is to authorize necessary which convic- question the jury determine,” tion solely is unconditionally judge. recited approved by trial His order “Special foregoing Ground Number 6 of the mo- amended subject tion is approved for new trial certified as charge certification note of The following court: entire subject given of by of court on confessions was movant. counsel for request of specific written court at of ground quoted set charge out and portion re- by the court as given verbatim motion amended these cir- movant.” Under counsel for quested in writing ground presents repeated rulings, cumstances, in view of 14) (11, Andrews nothing for review. 263). spe- general grounds, are Remaining determination jury alleged improper handling ground relating cial overnight recess, special ground complaining of an during have one that the court should urging jury, court’s insisting one charged upon involuntary manslaughter, statements incriminatory admitting into evidence erred the defendant. confessions of re general grounds. first assess evidence
We including cited State’s contentions, above as basis ruled confession admissible defendant’s admission and verdict support jury’s opinion, amply Division 5 of this are, grounds judge. Those approval the trial which has therefore, merit. without particulars,
Special complaining, in several ground overnight in during recess, improper handling jury con the facts but diverse dispute as to substantial no volves recited that the State’s judge clusions from facts. The conflict counter-showing complaints these without as to true the defendant and evidence offered took irregularities He or misconduct correct. found merit. ground that this place ruled at separation of The contentions toas treated be may are inter-related and tendance the bailiffs to not remain gist them did together. The *4 overnight occupied the but gether recess during in room one hotel, al same floor on of a different rooms the all which hallway into a bailiff was stationed though during led, remained room doors closed such rooms and remain not in attendance bailiff was night and, therefore, requires. ing jury, law authorized judge was the affidavits submitted,
From to other place, find that there with beds as follows: necessary jurors county where twelve facilities, in available overnight jury as- could be in one room; housed were signed eight occupied to and rooms the third floor of oining Hotel; assigned adj Perry New were two two bailiffs all rooms; that rooms on one foregoing of the were located connecting hallway hotel; floor of third occupied jurors by the oc- only rooms connected with rooms jurors; separated the cupied by foregoing other that the housing jury other that the persons influences; from outside jurors through exit occupied doors from thus rooms one of two bailiffs opening hallway; into and that in awake times hallway stationed and remained at all this while jurors were housed. so poses above factual questions situation two this —was kept
jury it together, and was attended a bailiff in man- ner required law? prior We believe that holdings of this court dealing in with similar require facts affirmative answer questions. both these State, (4)
In Blount v. 304), SE2d two complaints were made. first was that the jury while was in overnight the jurors placed recess were separated, six being this, one room and six in another. As to held: “Under appearing circumstances this case by affidavits from both the defendant State, place error jurors in two separate adjoining but in a motel.” The rooms complaint in the second Blount decision was bailiff separate apart went to a room the jurors went to bed. complaint With reference practice said: find that was error. “We of the to look duty bailiff at all times and to with the remain awake jury and remain at all times while are failure his care. His to do so in this case constitutes such misconduct to entitle trial.” a new (1) (111 Allen Ga. 70), the sin- gle. complaint the failure remain with bailiffs placed There, jurors dif- jury. in at least six ferent then sleep rooms of motel. bailiff went One
221
room. Even
separate
ain
the other
juror
room with
and
com-
improper
recited no
jurors’
affidavits
though all of
approvingly
quoting
court,
munication or conduct,
at-
such lack
held that
supra,
(4),
Blount
(1) jurors The first that television two of watched a program from room. The these a set in their court found, affidavits, jurors’ program that this reference what contained no ever to the case on criminal case. This other 782) (5 held, (11) court SE Fogarty State, v. 80 Ga. 451 450, merely reading juror’s newspaper that a of a which stated particular trial, that stronger situation from a case was Likewise, point view, was not reversible error. of here. was no error (2) The jurors’ second is each equipped rooms was telephone, providing for communications. opportunity juror But the affidavit besides of each that there tele- were no phone telephone calls, operators switchboard covering period time jurors’ during occupancy swore that the tele- phone the jurors’ in each inopera- rooms purposely tive during occupancy. such The trial court found this to be true. This contention is not meritorious.
(3) jurors The third that while quartered physician hotel one became ill and a who had testified as prosecution for the witness a bailiff and re- summoned juror the presence mained in ill and others about twenty minutes. trial court found that The the bailiff sum- who physician moned the did not realize that he been had witness particular but called one because he Was located so as be able respond present and that the bailiff quickly, physician While the was in attendance. court also found juror the physician, bailiff, jurors ill other present engaged discussion no whatever of case on trial.
Applicable, not complaint to this but also the other ground, contentions are principles this set forth 178): v. State, 403, Richmond 210 Ga. 405 “It has
223 immaterial trifling a mere been held this grant require not juror will in the conduct of a irregularity ir than an nothing more case, a new trial [citations]. in opportunity for without irregularity is shown. regularity An rule grant of a trial.” Under require will not new (10), State, 85, Ga. 86 as Monroe 5 comparable cases such bar, the case State, Daniel v. Ga. 653, defendant sustained showing carried burden of juror, treatment of a injury. medical emergency As to Trial, Am. Jur. see trial, 639, discussion of case Law, handling 884; 1356b. 23A Criminal CJS § trial. a new event cause judge expressed the trial ground complains that Special charg proven by what been opinion or intimated had ing follows: charge you gentlemen, you
“Now I further if find pre- the deceased in an effort was assailed vent burglary bur- perpetrating while defendant was *7 such glary the residence of dwelling deceased, of house the the the avail upon assault defendant would not deceased about the defendant the law of self-defense benefit of the charged you.” which have heretofore I you burglary “If the find defendant committed a breaking entering of the residence house dwelling into deceased, Cooper, larceny intent commit Jerry with to a of offense peipetration therein and that of this felony charged as deceased, killed the burglary the defendant murder.” the crime of indictment, guilty would be charge assumed, of the portion The complaint^s only house, fact, leaving proven burglary a victim’s his it, since the defendant committed question whether burglary, depended such upon absence of defense er- constituted reversible charge particularly was harmful ror. subject this criticism. not, opinion, in our to charge jury but assumption, correctly instructed such showed no effort the deceased was assailed if defendant
that, assault such perpetrating prevent burglary, defendant’s 224
would avail the defendant the self- benefit law of the charge adjusted defense. That to the issues of the case. 6). See (1 Daniel State, v. It left 412 SE2d (1), so, jury issue there burglary of whether and, if 169 whether this it. Cf. Barker v. State, committed (150 (4) Ga. 642). 414 SE Elsewhere the instructed that the defendant that he guilty any of- contended was not fense whatever, fully the court charged contentions fairly.
Special ground 3, complaining failure of the charge, request, man upon involuntary law of error. there slaughter, adduced, shows no From evidence nothing stabbing raise a doubt not intentional. defendant’s what unsworn statement to the transpired subject. not require did The rule on this long of force in set forth State is Ga. Cofer (2) 601).
Special ground complains deny court erred in ing motion to rule out and exclude evidence from the incriminating alleged statements and confessions of the de appears that it fendant, contention being affirmatively given. evidence were not freely voluntarily 20, Actually written statement of July the oral statement In July 22, 1960. former defendant admitted with stabbing deceased times sought a knife it upon ground but justify to the the purpose playing house for cards deceased’s w.ent him, money pawn won and- obtained his watch leave, he was about acted deceased self-defense -^hen him with a chair. attacked later oral he ad- events, stabbing changed preceding completely mitted but *8 he the reciting through window, broke into house (cid:127) the deceased, robbed him stabbed of his money watch.
We examined all carefully of the contentions made have together the relating statement ground, the evidence. are to We satisfied no error was them, committed. surrounding the reference to circumstances evidence with of Houston the Sheriff provided by two statements Investigation. Georgia agent Bureau and an
County phase but alluded on this testimony The defendant offered no testimony statement, to it his unsworn follow. Significant events two officers. July 1960, the defendant arrested Monday,
On of Fort agent County City near the the Sheriff of Peach watch Valley. him, removing then deceased’s They searched at day, Later person. from and other articles defendant County, Houston Sheriff of direction of city hall of agent Sheriff transferred day jail County. Pulaski On this Perry of adjoining whatever crime. with the connection defendant several-day during a Perry He contended was not dis- homicide the date of the period before and after on his that it Was the watch or about knowing anything claimed person. County
Then, on Tuesday, 19th, the Sheriff of Houston jail Haw- talked with Pulaski County everything. kinsville. Again, accused denied gave 20th, jail in that the defendant Next, on Wednesday, reduced agent. same latter sheriff and op- it to him the read to the accused afforded writing, signed presence portunity it. The defendant read County. the writ- of them and Sheriff of Pulaski This was stab- above, referred to ten statement which Smith admitted following it was done in Cooper but claimed self-defense bing game. after that statement Immediately their card two defendant that had evidence officers told the let but that he cut a window Cooper him in house did denied that. in. The defendant screen and broke 21st, Houston Thursday the following day, On Pulaski sheriff that County sheriff County was advised us tell him, see that he the defendant “wanted wanted the truth about it.” 22nd, response Friday message, told
agent with Smith. He went to Hawkinsville and talked *9 that County them he Pulaski sheriff Thursday had asked the them. he the truth about to call He then said that hadn’t told Then house, he in the that cut the screen.” stating how went “I Cooper killing breaking house, a narrative followed of his money and Watch. robbing him of his writ- Upon these officers testified trial, defendant’s ten 22 were July July statement of his statement of 20 and oral punishment freely fear of voluntarily given, hope of reward. judge that him,
With factual situation before them motion to allowing exclude thus statements, correct. “Before jury’s this he consideration. prima facie a confession can be evidence must admitted in voluntarily. there appear freely that it was made If freely the confession dispute is a whether deter that then of fact question one voluntarily, becomes facts undisputed jury. is where the only mination voluntarily not show that the freely confession that it from the evidence.” Garrett v. should be excluded 377). (1) (48 in- undisputed that position facts show his were, freely confession not criminating admission and from they have been excluded voluntarily made and should support this, effort he consideration. In an makes contentions. question- gained impression that he from the
The first is not be to return to Houston ing officers that he would allowed what County again until told officers family nor see he his por- suggested the officersin effect they know; wanted to also gained en- statement, to how he subsequent oral tions of changed that “he earlier house, to the deceased’s trance his repeated suggestion ques- with this to coincide days,” five because he had night some tioning him the statement gleaned them this was wanted so, he would then be returned to make if did he again. family his see County Houston allowed suggestions. On cross- making any such officers denied you County asked, sheriff was “Did examination the Houston prisoner tell this here 20th of if did July, change story you would leave him in Hawkinsville and see again?” answer I family wouldn’t His was, “No sir, did not.” nowhere the evidence show-
Furthermore, anything *10 that ing youthful, this defendant lacking w!as intelli- gence, illiterate, or protracted that the ignorant, questioning was abusive, upon or factors which many confession have cases turned. record, including statement to defendant’s oral jury, “repeated support ques- does not his contention toas night tioning days.” Certainly five it be some cannot said that demanded a or coercion finding facts of duress so involuntary. as make statements Next, the defendant that con- contends circumstances ditions show admission were not volun- and confession tary. As to he held being this that was then maintains he as given that counsel incommunicado; was not the benefit of he that he required; was arrested that illegally without a warrant; illegal an search seizure when the was occurred watch taken him; hearing that he not afforded a committment required; than he was confined in the rather Pulaski, j ail, Houston violation County, of law.
At the dealing contentions, point with outset, we must out not record de- does establish any incommunicado tention, request being contrary inferences; that anyone counsel by the or his behalf; probable arrest cause, had deceased’s watch; was, and that the watch admitted objection, evidence. As to com- warrant, arrest without failure have a mittment it is not hearing, county, and confinement in another necessary to deal sufficiency insufficiency expla- with the or made. nations which the officers
Even if none factors enumerated above taken proved, present alone or with here, finding others would demand statements were freely given. not voluntarily At those factors circumstances to be most, were considered question under court’s on the whether charge support voluntary. statements fully authorities were position. this (reversed by Ferguson 44) 215 Ga. ground), upon Court another Supreme United States made . . . the confession was court held: “That against or formal
before warrant was issued defendant, thereafter or the fact the defendant was not before receive affidavit an officer authorized to carried not prescribed . . . within the would issue a warrant time and deci- Code 38-411 render the confession inadmissible [citing § illegally might a defendant sions The fact that be court]. not render making time of a statement does detained at York, S. inadmissible in State court Stein v. New 346 U. [citing 1077, LE 156, 73 SC 1522].” “Also 179, 180, Law,
In 23 CJS Criminal said: 817(5), placed in questioning the fact that accused taken jurisdiction the one jail having in a other than county family charged ... friends and offense see accused while any opportunity accused custody made, was in until after confession does *11 of, or render . . . the absence his confession inadmissible or friends, relatives permit by visitation accused’s refusal to question on the legal counsel a circumstance to be considered is taken connection in voluntary, of whether a confession is involuntary the confession may circumstances render other Law, Also, 180-182, Criminal and inadmissible.” CJS 23 ar unlawful (6), states: “Unless facts show § make rest as to itself, or constitutes such duress confinement, under or con while arrest by confession made accused finement the same as involuntary, admissibility rules arrest lawful ... applicable confession are as if accused is the fact that confession inadmissible rendered arraignment, without formal custody or confinement However, him. . . charges against or filing of commitment, a circum arrest, custody the illegality confinement, has a confession determining stance considered in whether to be . .” unlawfully been coerced. Evidence, Am. Jur.
See, connection, 431, 432, same 498, 499. §§ admission ruling admitting to1 the subsequently unsworn statement. that the defendant
and confession written emphatically In adhered to his con- subsequent oral the full sought statement, to attribute his fession, illness and desire suggestion by officers, him where Perry officers w'ould return satisfy so family. see his could charged its instructions to fully
fairly subject using this admission confession, language requested exact counsel. ground.
There is no merit The trial court denied the properly motion trial. new Judgment'affirmed. except theAll Quillian,«/., Justices concur, Opinion correspond- who dissents Division 5 and the ing headnote. Justice, dissenting. The defendant, arrested
Quillian, not, warrant, was requires, law carried be- officer fore magistrate (Code 27-212, Ann. L. by Ga. amended pp. 796, 797), although nothing in indi- record jail cates where county crime was committed unsafe or that danger there mob the defendant violence, was, law, contrary lodged carried to there county another jail. He kept ac- isolated from his friends quaintances until, after days, he made the confession suggested by one.of officers.
In this factual opinion the posture, my confession was through illegal extracted from oppressive amounting measures to coercion. The di- confession was thus quality being freely vested of the given. It is voluntarily my opinion that, further while the search of the defendant’s person legal when when not car- made, accused was magistrate illegal ried before a the arrest became the search *12 illegal. made incident the arrest likewise became For given, ex- compelled reasons I am to dissent from the views pressed judgment. in the majority opinion and the