Biggers v. State
| Decision Date | 13 December 1930 |
| Docket Number | 7794. |
| Citation | 156 S.E. 201,171 Ga. 596 |
| Parties | BIGGERS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Denial of continuance, or change of venue, because of erroneous newspaper article concerning jurors favoring death penalty at first trial, held not abuse of discretion.
There was no abuse of discretion upon the part of the court in refusing a change of venue upon application made therefor, or in refusing a continuance of the case.
Refusal to permit reading of newspaper article to determine juror's bias, affirmed by operation of law; justices being equally divided.
On the assignment of error stated in the second division of the opinion, the justices are equally divided, and the judgment on that issue, stands affirmed by operation of law.
Inaccuracy in charging defendant denied confession when defendant merely denied voluntary confession held not ground for new trial.
The inaccuracy in the charge excepted to in the third ground of the amendment to the motion is not cause for the grant of a new trial.
Charge on murder during robbery held not erroneous for omitting law of self-defense not raised by evidence.
The charge excepted to in the fifth ground of the motion is not error for any reason assigned.
Denial of new trial for prosecutor's argument not to recommend mercy because life convicts escape or are pardoned stands affirmed, where justices are equally divided.
On the assignment of error stated in the fifth division of the opinion, the justices are equally divided, and the judgment on that issue, stands affirmed by operation of law.
There was evidence to authorize the conviction, and the confession in the case was amply corroborated.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Will Biggers, alias Watson, was convicted of murder, and he brings error.
Affirmed by operation of law.
Louis H. Foster, of Atlanta, for plaintiff in error.
John A Boykin, Sol. Gen., J. W. Le Craw, E. A. Stephens, and J. H Hudson, all of Atlanta, for the State.
Will Biggers was tried upon an indictment charging him with the murder of Frank Marlin by shooting him with a pistol. The jury returned a verdict of guilty, without a recommendation.
When the case was called for trial, and before the prisoner was arraigned, he filed a motion for a change of venue and for a continuance. The motion for a change of venue was based upon the ground that an impartial jury could not be obtained to try the defendant at the time and place when and where the case was called for trial, for the following reasons: (a) That the jurors selected to try him will have to be taken from the panels drawn and impaneled on November 4, 1929. (b) That on November 5, 1929, the Atlanta Constitution, a daily newspaper published in said county and with a general circulation, published a false and malicious account of a former proceeding in this court when this defendant was tried on a prior date, a copy of said false and malicious report of said former proceeding being attached to the motion as an exhibit. (c) That said report is false, in that it states "In the first trial, three weeks ago, it was reported that two of the twelve jurors voted for a life sentence for Biggers, while the remaining ten were for the death penalty." It is alleged in the motion that the statement as to how the jurors stood is not true; that the jurors now impaneled, and from which the defendant must select a jury to try him, have read the newspaper article referred to; and that the same is calculated to and will influence the mind of an impartial juror; and for this reason the accused cannot, at this time while said article is fresh in the minds of the jurors, have a fair and impartial trial, as he is entitled to receive under the Constitution and laws of this state. To this motion the defendant adds a prayer that he be "granted a continuance or a change of venue, that he may obtain an impartial jury to try him unhampered by such false and vicious propaganda as is in such newspaper article contained."
The newspaper article referred to was as follows:
Counsel for the accused, in support of the motion, offered to introduce in evidencetestimony of members of the jury on a former trial of the case, as to how the jury stood regarding their verdict on the trial; and counsel asked the court to allow him one hour to produce the witnesses to support the contention as charged and alleged in the petition. Counsel at the time stated in his place that the members of the former jury would testify that on the first ballot on the former trial they voted seven for electrocution and five for a recommendation of mercy, and that at the conclusion of their deliberation they stood eight for guilty with a...
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