174 S.E. 597 (Ga. 1934), 9871, Herndon v. State

Docket Nº:9871.
Citation:174 S.E. 597, 178 Ga. 832
Opinion Judge:BELL, Justice.
Party Name:HERNDON v. STATE.
Attorney:Ewing C. Baskette, of Nashville, Tenn., and John H. Geer, and Benjamin J. Davis, Jr., both of Atlanta, for plaintiff in error. John A. Boykin, Sol. Gen., J. Walter Le Craw, and John H. Hudson, all of Atlanta, and M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., fo...
Judge Panel:All the Justices concur, except RUSSELL, C.J., absent on account of illness.
Case Date:May 24, 1934
Court:Supreme Court of Georgia
 
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Page 597

174 S.E. 597 (Ga. 1934)

178 Ga. 832

HERNDON

v.

STATE.

No. 9871.

Supreme Court of Georgia

May 24, 1934

Syllabus by the Court.

1. Conclusions by the trial judge upon preliminary and collateral issues, such as are made by a plea in abatement to an indictment, or a challenge to the array of the trial jurors, and a traverse to each respectively, cannot properly be asserted as grounds of a motion for a new trial relating to the main and final issue as made by the indictment and the plea of not guilty.

(a) Where several rulings are complained of in a bill of exceptions in a criminal case, this court can consider only such as were made within twenty days before the tendering of the bill of exceptions, unless exceptions pendente lite were taken. No exceptions pendente lite were filed in the present case.

(b) Under the foregoing rulings, no question of error in the preliminary rulings is presented by the instant record.

(c) Even upon the merits it could hardly be said that any error was committed.

2. The statutory voir dire questions were propounded to the jurors separately. Counsel for the defendant, a negro, was further permitted to inquire of the jurors whether they had any racial prejudice such as would prevent the rendition of a fair and impartial verdict. This question was propounded to the jurors in panel of twelve, but a request to put the question to each juror separately was denied. The judge did not err in denying this request.

3. The documents found on the defendant's person and in the room where he lodged were not inadmissible in evidence upon the ground that the solicitor general had not exhibited any warrant authorizing a search of the defendant's person or his room.

4. Under the facts of this case it was not cause for a new trial that the court refused to exclude the evidence of the witness given on cross-examination: "A negro doesn't happen to have the right to marry my daughter, under the laws of this State. I do not know how many States there are in the union where they do have that right." The only objection urged to this evidence was: "There is nothing whatever in the Communist 1932 platform about intermarriage." Nor was it reversible error that the court permitted the solicitor general to ask the same witness, on cross-examination, "Do you understand the Communist position equal rights for negroes to mean the right of a colored boy to marry your daughter, if you have one?" over objection that the question was irrelevant and immaterial and called for a conclusion of the witness.

5. The ground of the motion for new trial assigning error upon the court's refusal to permit a witness "to qualify as an expert to testify to the non-insurrectionary character of documentary evidence introduced by the State" does not show reversible error. Nor was it cause for a new trial that the court permitted the same witness to give evidence of well-known historical facts, over objection that the questions responded to necessitated an opinion, and required the witness to answer "with particular detailed knowledge of political science."

6. Where a remark is made by a trial judge in the presence of the jury in ruling upon the admissibility of testimony, which remark the defendant's attorney deems to be of such character as to prejudice the minds of the jurors against his client, the attorney should move for a mistrial. The question of the propriety of such remark cannot be raised for the first time in a motion for new trial.

7. The defendant being on trial for the offense of attempting to incite an insurrection, the court did not err in defining the offense of insurrection, where the jury were further told that the defendant was on trial, not for that offense, but for the alleged attempt to incite an insurrection. It was not error to fail, without request, to instruct the jury as to the meaning of the phrase, "combined resistance to the lawful authority of the State," as contained in the definition of each of these offenses.

8. There was no merit in any of the grounds of the motion for new trial assigning error upon extracts from the court's charge.

9. Nor did the exceptions to the refusal of the requests to charge show error.

10. A witness for the state referred to the defendant as a "darkey." By a plea filed the defendant alleged that he was a member of the negro race. He contended that the term used by the witness was one of opprobrium and was highly prejudicial. The court declined to agree or disagree with this contention, but directed the witness to refer to the accused as the defendant. Held, no error.

11. The defendant was indicted for the offense of attempting to incite an insurrection, in violation of the Penal Code, § 56. The evidence authorized the verdict of guilty as returned against him; and no substantial error of law having been committed, the court did not err in refusing a new trial.

Error from Superior Court, Fulton County; L. B. Wyatt, Judge.

Angelo Herndon was convicted of attempting to incite an insurrection, and he brings error.

Affirmed.

Page 599

Ewing C. Baskette, of Nashville, Tenn., and John H. Geer, and Benjamin J. Davis, Jr., both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter Le Craw, and John H. Hudson, all of Atlanta, and M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.

BELL, Justice.

Angelo Herndon was indicted in Fulton county for the offense of attempting to incite an insurrection. The offense is defined in Penal Code, § 56, as "any attempt, by persuasion or otherwise, to induce others to join in any combined resistance to the lawful authority of the State." Section 57 declares that any person convicted of this offense shall be punished by death unless the jury recommend mercy, in which event the punishment shall be confinement in the penitentiary for not less than five nor more than twenty years. In this case the jury found the defendant guilty, but recommended mercy and fixed his punishment at from eighteen to twenty years.

Before pleading to the merits, the defendant filed a motion to quash the indictment, and also a plea in abatement, alleging in each that

Page 600

he was a negro, and that members of his race were unlawfully, systematically, and intentionally excluded from the grand jury which indicted him, in direct violation of the Fourteenth Amendment to the Constitution of the United States and of paragraph 3, section 1, article 1, of the Constitution of the state of Georgia. The solicitor general did not demur, but filed a traverse to each of these proceedings, and the issues made thereby were by consent of counsel submitted for trial to the judge without a jury. After hearing evidence at length from jury commissioners and others, the judge overruled and denied both the motion and the plea. Upon the call of the panel of 48 jurors from which to select a trial jury, the defendant filed a challenge to the array based upon the same ground; namely, that negroes were unlawfully, systematically, and intentionally excluded from the panel for the January term, 1933, during which the defendant was about to be tried. As in case of the other preliminary proceedings, the solicitor general did not demur, but filed a traverse, and the issue thus made was likewise submitted to the judge for trial upon the evidence without a jury. After evidence was submitted, the motion was overruled.

The defendant was then tried upon the charge contained in the indictment with the result indicated. He made a motion for a new trial which contained the usual general grounds and a number of special grounds added by amendment. The motion was overruled upon all grounds, and the defendant brought the case to this court.

1. The rulings by the trial judge upon the motion to quash, the plea in abatement, and the challenge to the array were all made on January 16, 1933. No exceptions pendente lite were filed to any of these rulings, but they were assigned as error in the motion for a new trial and also in the bill of exceptions. The judgment refusing a new trial was rendered on July 5, 1933. The bill of exceptions was certified on July 12, 1933.

Under the settled rules of practice applicable in this state, the rulings and findings of the trial judge upon the preliminary issues could not properly be asserted as grounds of the motion for a new trial relating to the main and final issue as made by the indictment and the plea of not guilty; but the conclusions reached by the court on such preliminary or collateral issues should have been excepted to pendente lite, or assigned as error in due time in the bill of exceptions. Williford v. State, 121 Ga. 173 (2), 48 S.E. 962; Jones v. State, 130 Ga. 274, 60 S.E. 840; Herrin v. Grannis, 40 Ga. 581; Jones v. Daniel, 106 Ga. 850, 33 S.E. 41; Strickland v. State, 115 Ga. 222, 41 S.E. 713; State Mutual, etc., Ass'n v. Kemp, 115 Ga. 355, 41 S.E. 652; Waters v. State, 158 Ga. 510, 123 S.E. 806; Whitton v. Barrow, 159 Ga. 57, 124 S.E. 874; Benford v. State, 18 Ga.App. 14 (4), 88 S.E. 747. Accordingly, the motion for a new trial, so far as it pertains to these matters, does not present any question of error for decision by this court.

The assignments of error upon the same rulings as contained in the bill of exceptions are also fatally defective, though for the different reason that they were not made in time. In all criminal cases the bill of exceptions shall be tendered and signed within twenty days from the rendition of the decision complained of. Civ. Code 1910, § 6153. This applies, of course, to the final bill of exceptions by which the case is brought to the appellate court. As to exceptions...

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