155 Ga. 395 | Ga. | 1923
The defendant was indicted for the murder of his wife, and was convicted and sentenced to be hanged. His defenses consisted of the general defense of not guilty and the defense of insanity. He made a motion for new trial upon the general grounds, and upon certain special grounds embraced in an amendment to his motion. He assigns error upon the judgment of the court overruling his motion for new trial.
An attorney was employed to assist in the prosecution of the defendant, and was paid by a subscription made for that purpose by various persons. Counsel for the defendant requested the court to purge the jury of all those on the list of jurors who were subscribers to said fund or related to such subscribers. The court then had the list of subscribers to said fund read, and stated to the jurors that if any of them were related to the defendant, to the deceased, or to any of the subscribers to said fund, they would let that fact be known when their names were called, one by one. Of the panel of 48 jurors put upon the defendant, 26 were stricken for cause when so called. The defendant insists that the court should have .purged the panel of 48 of all disqualified jurors, and should have had their places filled by impartial and competent jurors before the array was put upon him, so that he could have had a panel of 48 qualified and competent jurors from which to strike. The failure of the court to pursue this method left 26 disqualified jurors upon the panel, whose disqualification was not known to him, and could not be known until the name of each juror was called, for which reason he and his counsel left bn the
When any person stands indicted for a felony, the jury should be impaneled as prescribed in sections 862 and 863 of the Penal Code. Penal Code, § 996. By section 862, “the court shall have impaneled forty-eight jurors, twenty-four of whom shall be taken from the two panels of petit jurors, from which to select the jury. If the jury can not be made up of said panel of forty-eight, the court shall continue to furnish panels, consisting of such number of jurors as the court, in its discretion, may think proper, until a jury is obtained.” Section 863 declares that “When the regular panels of petit jurors, or either of them, can not be furnished to make up panels of forty-eight for the trial of felonies, or panels of twenty-four from which to take juries in misdemeanors, because of the absence of any of such panels, where they, or any part of them, are engaged in the consideration of a case, the presiding judge may cause said panels to be filled by summoning such numbers of persons, who are competent jurors, as may be necessary to make full the said panels; and such panels of twenty-four shall be used as the regular panels of twenty-four are.” When panels of jurors are made out in accordance with the provisions of the above sections, the clerk is required to make out three lists of each panel and furnish one to the prosecuting counsel and one to counsel for the defendant. The clerk shall then call over the panel, and it shall be immediately put upon the accused. Penal Code, § 997. The accused can then in writing challenge the array for any cause going to show that it was not fairly or properly impaneled or ought not to be put upon him If the challenge is sustained, a new panel shall be ordered; but if not sustained, the selection of jurors shall proceed. Penal Code, § 998. Objections to individual jurors of the panel furnish no ground of challenge to the array, but only ground of challenge to the polls. Robinson v. State, 82 Ga. 535 (9 S. E. 528); Schnell v. State, 92 Ga. 459 (17 S. E. 966); Brown v. State, 97 Ga. 215 (22 S. E. 403); Bryan v. State, 124 Ga. 79 (52 S. E. 298); Cole
We will now briefly consider the authorities relied on by counsel for the defendant. Section 858 of the Penal Code, which declares that, “ In civil cases and cases of misdemeanors in the superior court, each party may demand a full panel of twenty-four competent and impartial jurors from which to strike a jury,” does not apply to felony cases. In civil and misdemeanor cases the jurors are selected by the parties striking from the lists of jurors on the panels. Each juror is not called and put upon the defend
In the second ground of his amendment to his motion for new trial, the defendant complains of the admission by the court, over his objection, of a'confession made by him to the sheriff. The testimony of the sheriff as to the circumstances under which this confession was made, and as to the confession itself, is as follows :■ “ The next morning me and Mr. Patton and W. K. Crow went to the jail, and Mr. Hopkins, the deputy sheriff, was there, and I asked him [the defendant] some questions. I told him, ‘You killed your wife, I am certain.’ And Í went on and stated to him that there couldn’t anybody touch him while he was a prisoner of mine, and if he didn’t want to make a statement, not to do it; and he didn’t make any statement. As we started out he called me back. W. K. Crow is deputy sheriff and one of these highway-commission fellows. . . He called me back voluntarily — we were all leaving — and no statement had been made at that time; and he told me that, if I would take him out of the cage to himself, that he would like to talk to me. . . Me and him went around in the other cell, and Whitworth told me he wanted to tell the truth about it; and I said I would write it down — and somehow I have lost the paper and can’t find it, but can tell you what was in it. He says, ‘ Yes I killed my wife last night, and cut her throat.’ And I says, ‘ What for ? ’ And he says, ‘ She wouldn’t let me have the money she had, and wouldn’t let me have intercourse with her.’ ” Counsel for the defendant objected to the admission of this evidence, on the ground that said alleged confession
A confession made to the sheriff will not be excluded simply because the prisoner was in his custody under arrest at the time. Fuller v. State, 109 Ga, 809, 812 (35 S. E. 298). The hope of benefit, which will exclude a confession, must be one which another holds out to the accused to elicit it. The fear of injury, which will render a confession inadmissible, must be a fear which another excites to make the defendant confess. Bohannon v. State, 92 Ga. 28 (18 S. E. 302); Minton v. State, 99 Ga. 254 (25 S. E. 626). In Bohannon’s case, the witness threatened to prosecute him. He then confessed. In that case Chief Justice Bleckley said: “Was there any extortion in this ? Surely not. There was no invitation to confess. . . No confession was suggested or mentioned; no reference was made to the subject, either expressly or
Exception is taken to this instruction to the jury, to wit: “ But I charge you in the beginning, that the law presumes everybody to be sane; that is a presumption, however, that is rebuttable, and it is not everybody that is sane, and the burden is on the defendant to establish that fact; whether or not that has been done either by evidence from the State, or established by evidence from the defendant, it can be done by evidence of either, is a question entirely for you to determine; you are the sole judges.” The errors assigned are: (1) that it withdrew from tlm consideration
The defendant asserts that the court erred in failing to give in charge to the jury the principle that the defense of insanity may be established from the indicia presented by the act itself, and the evidence of the mental condition of the accused before, at, and after the commission of the alleged criminal act. There was no request for this instruction. The court instructed the jury upon both general and delusional insanity as defenses. The methods of proving insanity were collateral matters on which the judge was not obliged to charge, in the absence of a timely written request. Watts v. State, 120 Ga. 496 (48 S. E. 142); Watson v. State, 136 Ga. 236 (6) (71 S. E. 122).
Error is assigned on the failure of the court to charge the jury that the evidence bearing on insanity should be considered in connection with all the other evidence, to determine whether there was reasonable doubt as to the defendant’s guilt. There was no request for this charge. Conceding that this instruction, if given, would state a correct principle of law, which the writer doubts, it was likewise 'a collateral matter, and a timely request therefor should have been preferred. The court charged on the subject of reasonable doubt. If the defendant desired a more specific instruction on this subject, an appropriate request therefor should have been made. Johnson v. State, 148 Ga. 546 (3) (97 S. E. 515).
7. One ground of the defendant’s motion for new trial is based upon the discovery of new evidence. This evidence was- to the effect that the defendant’s paternal grandfather was a semi-imbecile, that one of his mother’s brothers was a total imbecile and lunatic, and had been committed for lunacy to the State sanitarium where he died, and that a sister of the defendant is of unsound mind and an idiot. The witness who testified to these new facts was a witness for defendant on his trial. In his affidavit he deposes, that he had had a conference with one of the defendant’s attorneys prior to his trial, who questioned him in regard to the family history of the defendant and as to his mental condition; and that since the trial of said case, and after refreshing his recollection, he recalled that he knew the maternal ancestors of the defendant back to his great-great-grandparents. On the hearing of his motion for new trial the defendant introduced the record of the lunacy proceedings before the ordinary of Habersham County, in which his mother’s brother was adjudged a lunatic and committed to the State insane asylum.
8. The verdict is supported by the evidence, and the trial judge did not abuse his discretion in overruling the motion for new trial. Judgment affirmed.