156 Ga. 285 | Ga. | 1923
Lead Opinion
Effie Williams was indicted for the murder of W. W. (Willie) Williams, it being charged that she feloniously killed the decedent by shooting him with a pistol. Upon the trial of the case the jury returned a verdict of guilty, with recommendation. The defendant moved for a new trial, which was refused, and she excepted.
The original motion for new trial contains the usual general grounds, that the verdict was contrary to law and the evidence. The first ground of the amendment to the motion assigns error upon the ruling of the court in permitting a witness for the State, Clarence Steed, over the objection that his testimony was irrelevant, immaterial, and “ too remote to have any probative value,” to state in substance the conversation which he had with the accused. He testified that he said to her, “ I hear that you are married,” and she replied, “Yes, I am married, but that don’t mean anything, because he will soon be dead anyhow, he is old and can’t stand much. The first wife didn’t know how to kill him, but wait till I get his policies and everything fixed, and X am' going to show him something. I am going to kill him with kindness.” This conversation occurred six or seven months before the decedent was killed. It was not error to admit this testimony. Whether the accused made these remarks seriously, or whether they had any probative value, were questions for the jury. The house of the decedent and his wife was destroyed by fire on the night of the killing. There was a fire-insurance policy covering
A policy of fire insurance on the residence of the decedent and his wife, the accused, and the policy of insurance on the life of the decedent, in which the accused was named as beneficiary, were admissible in evidence under the circumstances of this ease, without proof of their execution. These policies were found in a trunk which the jury were authorized to find from the evidence was the property of the accused, and it was in the house at the time it was burned. Ordinarily, proof of the execution of such documents must be shown, in order to render them admissible in evidence; but the jury were authorized to find in this case that the accused expected to collect on each of these policies, that she had them in her custody, and that they were collectible upon the happening of the events which took place that night, — that is, the burning of the house and the death of her husband. They were admissible to show motive.
When the life-insurance policy was offered in evidence, counsel for the State, the solicitor-general, stated that this policy came from the possession of the defendant; and counsel for the defendant moved the court to declare a mistrial, because of this statement and its prejudicial effect upon the jury trying the case. Thereupon the solicitor-general stated that he expected to show that the policy came from the trunk belonging to the defendant, which she recovered from the house while it was burning. Thereupon the court refused to declare a mistrial, and error is assigned upon this ruling. The remark of the solicitor-general to the effect that the policy came from the possession of the defendant did not require the grant of a new trial, in view of the fact that he immediately stated that he expected to prove that it came from the trunk of the accused.
The sheriff had taken possession of the trunk alleged to be the property of the defendant, and it was brought into the court
The policies were not inadmissible because of the objection based upon the ground that they were not shown to be in force. It is not stated in this ground of the motion that as a matter of fact the'policies were not in force,- and the court will not look to other parts of the record to ascertain the truth of the ground upon which the objection was based. Whether the evidence would have been inadmissible had it been made to appear that the policies were not in force, is not ruled. •
A trunk and its contents were also offered in evidence and admitted over the objection that it was not stated what was offered in the trunk, and the defendants could not tell what was offered, nor whether it was admissible 'or not; that the contents of the trunk should have been offered piece by piece, so -that the defendant could make her objection to such separate article offered; and because it had not been established by evidence that the trunk had not been tampered with; that its possession had not been accounted for from the time it had been brought out of the house till the sheriff got it; that it was not shown to be in the same condition it was when in defendant’s possession. There was evidence from which the jury might find that the trunk was the same one brought from the burning house by the accused, and that its contents were substantially the same. While the evidence offered upon this subject did not exclude the possibility of some one having tampered -with the trunk, the jury were authorized to find that it was the trunk of the defendant, and that its contents were the same as when it was brought from the burning house.
During the argument of the solicitor-general he took from the trunk just referred to a silken undergarment worn by women,
Error is assigned upon the following charge of the court: “ However, in the trial of a criminal charge, and this is a criminal charge, it is incumbent upon the State, and the burden is upon the State, to establish every fact necessary to prove the material allegations of the indictment,” for the reason that the evidence showfed that the ■ deceased was burned, and the jury, not being familiar with the rules of law, could easily have reached the conclusion, in view of the fact that the deceased was dead and a killing had taken place, that, although it was charged he was killed with a pistol, inasmuch as he was dead and the defendant was charged with his murder, if it was shown that she killed him either by pistol-shots or by burning, they could easily find the defendant guilty.” From a reading of the exception it will be seen that the only criticism upon the charge complained of is that it did not go further and charge an additional legal principle and rule. As
The court thus defined reasonable doubt: “The words, gentlemen, ‘beyond a reasonable doubt,’ mean what they necessarily imply; they do not mean an entire absence of doubt, no doubt at all, nor do they mean an entire want of doubt, nor do they mean a whimsical, captious, or factitious doubt, but, as the words imply, a reasonable doubt.” The ground of exception to this charge is that the court “ did not, in connection with this, state that such a doubt may arise either out of the evidence, or for the want of evidence, or proven circumstances in the case.” The exception here is defective upon the grounds indicated in disposing of the exception to the charge dealt with above. Moreover, the charge itself defined reasonable doubt with substantial correctness.
The court charged the jury as follows: “ Now, gentlemen, you take this case and go through it carefully, weigh the evidence, oral, documentrary, and otherwise, and give to the defendant’s statement such weight and credit as you see proper, and when j'ou have reached your conclusion, and so find beyond a reasonable doubt, if indeetl you do so find that this defendant is guilty, let your verdict be couched in some such language as that which the court has given you in charge.” This charge is criticised upon the ground that it contained an intimation on the part of the court to the jury that the court expected them to find the defendant guilty. The charge is not open to that criticism.
Judgment affirmed by operation of law.
Dissenting Opinion
dissenting. I think several grounds of the motion are meritorious, but shall only consider one ground. The seventh ground of the amendment to the motion for a new trial, as approved and certified as true by the trial judge, is as follows: “During the argument of the solicitor-general he took from the alleged trunk of the defendant a pair of silk “ teddie bears,” which is an undergarment worn by women, and exhibited the same to
It may be,- that, by administering a proper rebuke to the solicitor-general and by cautioning the jury to pay no attention to this portion of the argument of the learned State’s counsel, the condition created thereby might have been ameliorated or the incident might even have been entirely obliterated from the minds of the jury; but, so far as appears from the record, the court, by failure to act otherwise than to overrule the motion for a mistrial, tacitly and impliedly sanctioned and enforced the argument of the solicitor-general. In such a situation, when decisive action is imperative to prevent harm, silence must be construed as approval. The defendant was on trial for murder. The trunk and its contents were admitted, as ruled by the court, solely for the purpose, as stated by the solicitor-general, of showing that the defendant had intended to leave immediately, because the trunk was packed, which might or might not be a circumstance of more or less probative value; but the nature and quality of clothes worn by the
The constitution of this State guarantees a fair and impartial, unbiased, -and unprejudiced trial to every person charged with crime; and in my opinion there can be no question that the action of the solicitor-general, complained of in the third and seventh grounds, was highly prejudicial to the accused. In the trial of a negro slave, Jesse v. State, 20 Ga. 156-169, this court said: “It may not be amiss, however, to observe, that while the safety of society requires the faithful prosecution of offenders against the laws, the State does not ask their conviction but upon a calm and dispassionate investigation of the charges against them.” Officers of the court should be most careful in the language employed in the argument of State’s cases to the jury. It is never necessary to so argue a case as to rouse the passions of a jury. Where counsel in the presence of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. Civil Code, § 4957.
The defendant pursued a method prescribed by law, though if, as above indicated, the judge had not been of the opinion that the injurious effect was incurable, and had adopted some other corrective measure, possibly a new trial might not have been required. “ If the error of the judge . . in permitting prejudicial remarks by counsel was not sufficiently cured by instructions of the court to the jury, -counsel should have promptly moved for a mistrial.” Livingston v. State, 17 Ga. App. 136 (3) (86 S. E. 449). As the statement of the solicitor-general remained unquestioned before the jury, it must be presumed, in the absence of any positive knowledge as- to how it affected the jury, to have been 'prejudicial to the accused. “ Improper conduct on the part of counsel in making an unauthorized statement of fact in the hearing of the jury is not to be corrected by ‘ruling out’ the statement, but by instructing the jury to disregard the same, or by declaring a mistrial if, on account of the grossness or seriousness of the impropriety, the ends of justice so require.” Collins Park &c. R. Co. v. Ware, 112 Ga. 663 (37 S. E. 975). “The State, as accuser in a criminal proceeding, does not seek one of its citizens convicted unless the evidence shows his guilt beyond a reasonable doubt; nor