Barfield v. State

• Decision Date: 13 August 1934
• Docket Number: 10108.
• Citation: 175 S.E. 582,179 Ga. 293
• Parties: BARFIELD v. STATE.
• Court: Georgia Supreme Court

175 S.E. 582

179 Ga. 293

BARFIELD v. STATE.

No. 10108.

Supreme Court of Georgia

August 13, 1934

Syllabus by the Court.

1. The verdict of a jury finding one accused of murder to be guilty without more (except where the evidence is entirely circumstantial), requires the infliction of the death penalty; but in all cases the trial jury have the privilege and right, unrestricted by any law, to recommend the penalty of life imprisonment. From this it follows that a verdict of guilty of murder, unaccompanied by any recommendation on the part of the jury, can never be said to be demanded by the evidence. "There may be a state of facts where the evidence, under the law, would demand a conviction of the crime of murder; but under our law, where the punishment to be inflicted for murder is left in the discretion of the jury, under no circumstances can this court say that the evidence demanded a general verdict of guilty which must be followed by the infliction of the death penalty." Glover v. State, 128 Ga. 1, 7, 57 S.E. 101.

2. In view of the principle just stated, any fact or circumstance in a trial for murder which tends to impair the privilege and right of one accused of murder to obtain a recommendation for life imprisonment, if not known to the defendant or his counsel until after the trial, requires the grant of a new trial.

3. In the circumstances, a new trial should be granted, although on a counter showing to the motion for a new trial the members of the jury may, in affidavits in support of the verdict of guilty, swear that the circumstances alleged to be prejudicial and injurious had no effect upon their minds, and that the verdict was rendered solely upon a consideration of the evidence in the case. Our minds are so constituted that it is impossible to say what impression a statement made in the presence and hearing of members of a jury by counsel engaged in assisting the solicitor general in the prosecution of the case would make upon us, unless we had determined beforehand that the prisoner was guilty or innocent. The question is, not what was the effect produced upon the minds of the jury, but what was the effect of the circumstances calculated to produce. "We cannot determine what effect they did have, but it is apparent what effect they were calculated to have."

4. The court erred in overruling the motion for a new trial.

Error from Superior Court, Clayton County; John B. Hutcheson Judge.

Archie Barfield was convicted of murder, and he brings error.

Reversed.

H. O Hubert, Jr., of Decatur, and Hershel Parham, of Cartersville for plaintiff in error.

Claude C. Smith, Sol. Gen., of Decatur, M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., and E. J. Clower, all of Atlanta, for the State.

RUSSELL Chief Justice.

Archie Barfield was tried under an indictment for murder, and was convicted without recommendation. He filed a motion for a new trial, which was overruled, and to that judgment he excepted. The deceased was a married woman, and the motive of the crime was evidently robbery. The circumstances of the killing, as evidenced by the corpse, were barbarous and brutal. Several months elapsed without there being any clue to the perpetrator of the murder. When the defendant was arrested, he with apparent readiness confessed to many persons, during his stay in jail, that he killed the deceased. At other times when questioned he would make conflicting statements as to the circumstances of the murder and the extent of his participation in the crime, without expressly denying that he committed the homicide. It is unnecessary to recapitulate the evidence in detail; for it is conceded by counsel for the plaintiff in error that the evidence (which, aside from the confessions of the accused, was entirely circumstantial) will legally authorize a verdict finding the defendant guilty. The only defense raised at the trial was that the accused was insane at the time of the homicide and not able to tell the difference between right and wrong. Upon this pivotal point the evidence is in such conflict that a very slight circumstance might cause the balance to tip to one side rather than to the other.

In his motion for new trial the plaintiff in error alleges, in effect, that an untoward circumstance which occurred pending his trial was calculated to prevent the jury from giving a free and fair consideration of his only defense-that of insanity-thereby depriving him at least of any opportunity to receive a modification of his penalty from that of death to confinement for life. It appears from the record, as approved by the learned trial judge, that the trial of the accused began on Thursday morning, August 31, 1933, and that the usual preliminaries of trial and introduction of evidence on behalf of the state consumed all of that day; and, when the state closed and the defense would have been entitled to proceed with its testimony, the court took a recess until Friday morning. Before the court opened, three of the jurors were on the courthouse porch in company with the sheriff and some others, when Mr. Lester Dickson, who had been employed to ascertain who committed the homicide and who was also assisting the solicitor general in the trial of the case, came up and engaged in a conversation with the sheriff and others with him, and in the presence and hearing of the three jurors. As stated in the motion for new trial: "Movant further shows that after the trial of said case had proceeded all day Thursday, on Friday morning, September 1, 1933, at approximately 7 a. m., the jury in charge of the bailiff, Horace Lester, came out of the hotel at which they spent the night and proceeded to the Clayton County court-house. Upon arriving at the court-house most of the jurors went inside, but C. V. Phillips, S. A. Hudgins, and J. A. Thames stayed on the front porch to get a drink of water. While said jurors were on the front porch the said Lester Dickson came up and made certain remarks in their presence and hearing, substantially as follows: that a specialist was coming down there to testify in the case, who would swear that the average man's intelligence was that of an eleven-year-old child; that he had used a specialist in a case of his once where his client was sentenced to hang, and had taken him before the Governor and saved his client's life; and that he thought he would have the specialist test the intelligence of the judge and some of the lawyers. Movant further shows that immediately upon the convening of court on Friday morning, a short time after said remarks were made in the presence and hearing of said jury by the said Dickson, the defendant called as his first witness, Dr. Newdigate M. Owensby, a specialist in psychiatry; that the defense relied upon by the defendant in said case was that of insanity; and that Dr. Owensby was his main witness and his only expert witness upon whom he relied to establish his contentions. Movant further shows that after his remarks made before and in the presence of the jury that morning and during his argument to the jury, the said Lester Dickson referred to Dr. Owensby in a sneering and jocular manner; that he mispronounced the word psychiatrist, on one occasion calling it sy-catrix and on another ca-ca-trix, well knowing the proper pronunciation of the word at the time and having heard it used on several occasions prior to his argument during the trial of the case; that he stated to the jury in said argument that these specialists had book learning, but that was all they knew; that he attempted to make capital out of the fact that the specialist, Dr. Owensby, had lived above the Mason and Dixon line, but upon objection by counsel for the defendant the court instructed the jury that this was improper argument and that it should be excluded." The defendant's counsel did not object to this argument, as they would have done had they known what had transpired at the well.

It is apparent that a single question raised by this record is whether the defendant was entitled to a new trial, for the reason, if upon no other ground, that the circumstances to which we have referred greatly diminished, if they did not entirely debar, the defendant's right to be recommended for life imprisonment. It makes no difference if the evidence against the defendant "demanded," as that word is ordinarily used, a verdict of guilty; for in a capital felony this court has more than once...