Lynn v. State
| Decision Date | 13 June 1913 |
| Citation | 79 S.E. 29,140 Ga. 387 |
| Parties | LYNN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
By the act approved August 18, 1911 (Acts 1911, p. 81), creating the Dublin judicial circuit, four terms of court were created for Laurens county, namely, January, April, July, and November and it is provided in this act that the grand juries of the counties of the circuit shall not be convened except for the spring and fall terms of the court, unless in the discretion of the presiding judge it shall be deemed expedient to call a special session of the grand jury at some other term. At the close of the October term, 1912, of the superior court of Laurens county the presiding judge drew the required number of names of persons to serve as grand jurors at the January term, 1913, of the superior court. Before any indictment was returned against them the defendants challenged the array of grand jurors, for the alleged reason that they could only be convened legally at the April and October terms of the court. A demurrer was filed to the challenge to the array, which was sustained by the court. After indictment, and before arraignment, the defendants filed a plea in abatement substantially on the same grounds as set out in the challenge to the array. A demurrer was likewise filed to the plea in abatement, and sustained by the court. Held, that the court did not err in sustaining the demurrers.
Where two persons are jointly indicted for murder, and a panel of 48 jurors is put upon them as trial jurors, and they elect to be tried together, they cannot demand a panel of 96 jurors from which to strike.
The court did not err in refusing to give the jury the written requests to charge as contained in the third, fourth, fifth and sixth divisions of the opinion.
The instruction contained in the seventh division of the opinion was not erroneous.
(a) A conspiracy may be shown by circumstantial evidence, as well as direct testimony.
(b) That there was no conspiracy charged in terms in the bill of indictment between the defendants jointly indicted does not make the giving of a correct instruction to the jury on the subject of conspiracy error, where there is evidence to authorize such a charge.
Where objection is made to the admissibility of testimony, and the court does not rule upon the objection, but the testimony is allowed to go to the jury, the failure of the court to rule upon the evidence, under the facts, is equivalent to overruling the objection.
(a) That a witness did not hear all of the conversation between two defendants, jointly indicted, and about which he is asked to testify, is no ground of objection to his stating so much of it as he did hear.
Where two persons are jointly indicted for murder, and the state relied largely upon circumstantial evidence for conviction and the existence of a conspiracy to commit the murder, it was not error to admit the following letter to the deceased in evidence (which, according to admission of counsel for defendants in open court, was written jointly by the defendants), as tending to show a conspiracy between them
A witness was called by the defendant for the purpose of proving his general good character. On direct examination he testified that he did not know the defendant's general character; that all he knew was personal. The court declared the witness incompetent, and he withdrew from the witness chair. Subsequently the state asked leave to put the witness back on the stand as defendant's witness and cross-examine him, which was allowed to be done by the court. The witness, over objection of defendant's counsel, testified in answer to a question from state's counsel: "I have heard him [the defendant] use words that carried with them a meaning which implied a threat on his [Davis', a third person] life." Held, that this was error, but under the facts of this case will not require a new trial.
The evidence is sufficient to authorize the verdict.
Error from Superior Court, Laurens County; K. J. Hawkins, Judge.
A. L. Lynn was convicted of murder, and brings error. Affirmed.
Davis & New, of Dublin, for plaintiff in error.
E. L. Stephens, Sol. Gen., of Wrightsville, J. S. Adams and Davis & Sturgis, all of Dublin, and T. S. Felder, Atty. Gen., for the State.
At the January term, 1913, of the superior court of Laurens county, A. L. Lynn and Alice Lynn, his wife, were jointly indicted and tried for the murder of F. M. Hightower. The jury rendered a verdict finding the defendant Alice Lynn not guilty, and the defendant A. L. Lynn guilty, with a recommendation to life imprisonment in the penitentiary. To the judgment of the court overruling his motion for a new trial, A. L. Lynn excepted.
1. One ground of the amended motion for a new trial is because the court erred in sustaining a demurrer filed to the challenge to the array of grand jurors before they had returned a true bill against the defendants. The grand jury by whom the defendant was indicted was drawn at the regular fall term of court, and summoned to appear at the next term, to wit, the January term, when they were impaneled. At that term the defendant was indicted. He challenged the array on the ground that the grand jury was not a legal one. He contended that the provision of the act creating the Dublin circuit (Acts 1911, p. 82), which provides that the grand juries of the counties of that circuit "shall not be convened except for the spring and fall terms of the court unless in the discretion of the presiding judge it shall be deemed expedient to call a special session of the grand jury at some other term," was unconstitutional because not uniform with the practice in regard to summoning grand juries for each term of court prescribed by general laws, and also because the grand jury were not called in special session at the January term of court in accordance with that act, if it were constitutional. It is unnecessary to decide whether the provision of the act above quoted is or is not constitutional. In either event the grand jury which indicted the defendant was a legal grand jury, and that is all that concerns him. Under the general law provision is made for having a grand jury at each term of court. Penal Code, § 823. If, therefore, the above-quoted provision is invalid and should be stricken from the act, under the general law a grand jury could be drawn at the fall term of court and summoned for the next regular term thereafter, to wit, the January term. If, on the other hand, the provision of the act above quoted should be held to be constitutional, there is nothing in it which would make the grand jury so drawn and summoned an illegal grand jury. It declares that the grand juries shall not be "convened" except for the spring and fall terms of the court unless in the discretion of the court it shall be deemed expedient "to call a special session of the grand jury at some other term." When the presiding judge drew a grand jury at the fall term of court, and caused the jurors so drawn to be summoned to appear at the January term thereafter, and impaneled them and caused them to proceed to discharge the duties of a grand jury, this was sufficient evidence that in his discretion he deemed it necessary for the grand jury to be in session at that term, and that he called a special session of the grand jury thereat. No formal order or declaration further than this was necessary for that purpose. The act requires the grand jury to be convened at the spring and fall terms of the court, and leaves it to the discretion of the presiding judge to call a special session of the grand jury at some other term. It was held in Tompkins v. State, 138 Ga. 465, 75 S.E. 594, that grand jurors who had served at one regular term of the superior court were declared by the Legislature to be ineligible for jury duty at the next succeeding term, and that under the act creating the Dublin circuit the presiding judge could not summon a grand jury which had served at one regular term to serve at the next succeeding regular term of court. It was suggested that probably, under the power to call a special session of the grand jury at some other term, the same grand jury might be recalled at such a term as grand juries could be called in special session under the general law; but what was said in regard to calling back a grand jury to serve at two succeeding terms was not a construction of the entire provision of the act, or a declaration that it had no meaning except in regard to such a situation. In the present case there was no effort to require a grand jury which had served at one term to return and serve at the next succeeding regular term. A new grand jury was drawn at the fall term, and summoned to serve at the January term, and then impaneled. As to that situation, the action of the judge was a sufficient compliance with the provision of the act authorizing him to call a special session of the grand jury at the January term. Thus, if the constitutional attack on this provision of the act should be sustained, under the general law the grand jury which indicted the defendant was legally drawn, summoned, and impaneled at the term when the indictment was found. If the provision of the act should be treated...
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