146 Ga. 76 | Ga. | 1916
1. Curtis Smoot was on trial for the murder of Will Tom Jones. The defendant had not put his character in issue; but the associate counsel for the State, while making his concluding argument before the jury, used the following language: “Gentlemen of the jury, the defendant’s counsel argues to you that the character of Will Tom Jones was bad. Why did they not put their client’s, Curtis Smoot’s, character in issue? They know why. They dared not do so; they knew that we would overwhelm them with evidence to show that Smoot’s character was worse than the character of the man killed — it was blacker than the character of Will Tom Jones.” Before these utterances were completed, the judge attempted to suppress counsel, but failed to do so. The attorney for the defendant immediately moved for the court to grant a mistrial, on the ground that the remarks were improper, which motion was overruled; and one of the grounds of the motion for new'trial complains of that'ruling. In a note to this ground the judge made the following statement: “The court ruled that the argument of the counsel for the State was improper, and reprimanded him, stating that it was an infraction of the rules of court, and if repeated a mistrial would be granted. The court instructed the jury not to regard the statements of counsel for the State complained of — ‘that the defendant failed to put his character in issue, and dared not do so, and that the State could produce overwhelming evidence to show that his character was not as good as the man he killed, and was blacker than his.’ The court further instructed the jury, that, in the absence of proof of bad character by the defendant, it must be presumed that there was nothing derogatory to his character. A second time the court instructed the jury not to consider the statements complained of, made by counsel.”
In the Penal Code, § 1019, it is declared: “The general charac
In the ease of Butler v. State, 142 Ga. 286 (82 S. E. 654), where the accused had not put his character in issue, the attorney for the prosecution, while addressing the jury, stated: “Gentlemen of the jury, the defendant has not put his character in issue in this case, and for that reason we can not attack it; we can discuss his drunkenness. The rule of law is that when the defendant puts his character in issue, then the State can rebut it; but when the defendant does not put his character in issue, the State can not introduce testimony showing up his character. So we are estopped in this ease from saying anything about his character.” On motion duly made, the judge refused to grant a mistrial or to rebuke the attorney for having made the remarks. The refusal so to do was held by this court to be error requiring the grant of a new trial. In the course of the opinion it was said: “A defendant charged with murder has the right to put his character in issue, and when put in issue by him it is to be regarded as a substantive fact. If the defendant does not see proper to avail himself of this privilege which the law affords him, the' State can not introduce evidence relating to his general character. It is highly improper for counsel to discuss the general character of the accused when such character has. not been put in issue [citing the Bennett case,
2. There are a number of other grounds of the motion for new trial, but, upon careful consideration, we think none of them are meritorious or of such character as to require elaboration.
Judgment reversed.