Bland v. State
| Decision Date | 13 October 1954 |
| Docket Number | No. 18740,18740 |
| Citation | 211 Ga. 178,84 S.E.2d 369 |
| Parties | Wilson Horace BLAND v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Where, in the trial of a person charged with murder, the court, at the special request of the jury, read and instructed it as to the published rules and regulations of the Pardon and Parole Board concerning paroles and pardons without objection from the accused, it was not error to thus give the law concerning the same, and the ground of the amended motion for new trial complaining thereof is without merit.
2. The evidence being sufficient to support the verdict and the special grounds being without merit, the court did not err in denying the amended motion for new trial.
This is the second appearance of this case in this court, the court having previously reversed the conviction of the accused in Bland v. State, 210 Ga. 100, 78 S.E.2d 51. The exception here is to the denial of an amended motion for new trial, containing two special grounds, after a conviction by the jury which returned a verdict of guilty without a recommendation.
Robert J. Duffy, Savannah, for plaintiff in error.
Andrew J. Ryan, Jr., Sol. Gen., Sylvan A. Garfunkel, Thomas M. Johnson, Jr., Asst. Sol. Gen., Savannah, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.
Since the evidence amply supports the verdict and there is no merit in the second special ground of the amended motion for new trial, the fate of this case rests entirely upon the first special ground, which complains because, in response to a request by the jury after it had deliberated some time, the judge read and discussed some of the published rules and regulations of the Pardon and Parole Board concerning the granting of paroles and pardons by the board.
Unfortunately, this court has heretofore been unable to render a unanimous decision on this precise question. McRae v. State, 181 Ga. 68, 181 S.E. 571; Thompson v. State, 203 Ga. 416, 47 S.E.2d 54; Strickland v. State, 209 Ga. 65, 70 S.E.2d 710. But we have unanimously decided another and similar question, to wit: The prosecuting attorney can lawfully argue these rules and the possibility of a pardon or parole. McLendon v. State, 205 Ga. 55, 63, 52 S.E.2d 294. See cases therein cited and also Strickland v. State, 209 Ga. 675, 75 S.E.2d 6. If, as held, the solicitor-general is allowed to discuss the law pertaining to pardons and paroles, and we are all bound by the full bench decision so holding, is it not paradoxical to hold that the judge can not explain that law to the jury in a non-partisan and fair manner? Do we stand for concealing law, bearing directly upon punishment for crime, from the jury which must fix the punishment? It is to be the policy of judicially silencing the trial judge on that matter while it is freely tossed around by a partisan counsel? Finally, can it be seriously contended that the members of society, the relations of the slain, and even the jurors themselves, are not entitled to have the jury correctly informed of the true meaning of their verdict containing a recommendation to mercy which they can make, arbitrarily and without reason, before they take such far-reaching action? How can the law claim to be just, fair, and right while it demands that jurors act blindly on that matter? What would those who see virtue in such concealment have had the judge to have done in this case? The jury on its own motion asked for information on pardons and paroles. Should they have been told that it was none of their business? Had that been done after they showed that they were thinking about it, is it not perfectly indicated that, having failed to learn that the accused could not soon escape life imprisonment by pardon or parole, they would have returned a verdict without a recommendation? Judges ought to abandon the old erroneous ideas that jurors are robots, motionless when left to their own resources. The jurors here demonstrate their thinking powers, their independence, and their dependability, and judges should try to keep up with jurors instead of continuing to tie and trip them. The accused remained silent when the judge answered the jury's questions and thus waived any objection by so doing. Gravett v. State, 74 Ga. 191. It follows that the court did not err in refusing to grant the motion for new trial, as amended, as there is no merit in any of the grounds thereof.
Judgment affirmed.
All the Justices concur, except WYATT, P. J., and HEAD and MOBLEY, JJ., who dissent.
It appears from the record that at the time the jury asked the court for certain information relative to the possibility of the defendant not serving a life sentence if such sentence should be imposed upon him, neither the defendant nor his counsel made any objection answering the jury's question. The defendant's objection was first made in the amendment to his motion for a new trial. This comes too late. After neither objecting to the court answering the question, nor moving for a mistrial after the court had explained to the jury the conditions under which a parole could be granted by the Board of Pardons and Paroles, the defendant cannot for the first time urge his objection in a motion for a new trial. I adhere to the rulings in Thompson v. State, 203 Ga. 416, 47 S.E.2d 54, and Strickland v. State, 209 Ga. 65(1), 70 S.E.2d 710, which hold that, in the trial of one for murder, it is erroneous for the trial judge to charge the jury, in response to a question from the foreman, as to any facts or law pertaining to the duties and functions of the Board of Pardons and Paroles. These rulings should be modified to the extent that error on such a recharge cannot be assigned in a motion for new trial unless either (a) objection was made at the time the request was made to the court by the jury, or (b) a motion for a mistrial was made at the time the court gave the erroneous recharge. We do not have before us a case where the prejudicial part of the court's charge was a part of the main charge, where counsel has no opportunity of knowing what the court will cover in its instructions, but a situation where, after the case had been submitted to the jury, and they returned to the courtroom and asked the judge a question which it was not proper or lawful for the judge to answer. The defendant or his counsel must move then and there to assert objections, otherwise they should be deemed to have waived their rights. The reason why the rulings in the Thompson and Strickland cases, supra, should be modified, is that we apparently overlooked in those cases the full bench decision in Gravett v. State, 74 Ga. 191(2a), where in a criminal case, after the jury had retired, and upon their return to the courtroom had requested instructions of the court upon a particular question, it was held that the defendant and his counsel, having been in the courtroom when the special instructions were requested and given, and having made no objections thereto, or asked for additional instructions, they acquiesced in what was done.
I do not agree to the ruling that the instructions by the court in its recharge were not erroneous. I adhere to the rulings in the Thompson and Strickland cases, supra, that such instructions are improper, and where given constitute prejudicial error. I do not agree that the ruling in McLendon v. State, 205 Ga. 55(5), 52 S.E.2d 294, and other cases cited in the majority opinion, are controlling here. In each of those cases, the objection was to the argument of the prosecuting attorney in telling the jury that, if the prisoner was given a life sentence, he probably would be paroled or pardoned. It is quite a different thing for the court to inform the jury under what circumstances a defendant serving a life sentence may be pardoned or paroled. The jury takes the law only from the court. When the prosecuting attorney refers to the possibility of a pardon or parole, it is merely a matter of argument, and in no way binds the jury; but when the court speaks, the jury receives it with solemn verity, as coming from the only source that they can look to as binding upon them. In the trial of a capital case, where the jury have the power of sentencing the defendant to death, or recommending him to mercy, the court should not give any instructions that would in the remotest realm influence them for or against mercy.
I concur specially in the ruling in the first headnote and corresponding division of the opinion. In other rulings and the judgment of affirmance I fully concur.
In Thompson v. State, 203 Ga. 416, 47 S.E.2d 54, in an opinion prepared for this court by the writer, concurred in by six Justices, with one Justice not participating, it was said in part that where a question is propounded by a juror that involves the functions of a separate and distinct branch of the government, the jury should be told that such matters can not be the subject of any instruction by the court. I adhere to the rulings made in the Thompson case, supra, and I believe that the rulings there announced demand that the judgment in the present case be reversed.
The trial judge in the order denying the amended motion for new trial stated: 'The court then read from section IV, page 3, of a printed pamphlet entitled 'State Board of Pardons and Paroles, Policies, Rules and Regulations' promulgated in 1952 and furnished this court by the State Board.' Neither the Constitution of 1945, art. V, sec. I, par. XI, Code Ann. § 2-3011, creating a State Board of Pardons and Paroles, nor the act of the General Assembly pursuant to the Constitution, Ga.L.1943, pp. 185-195, purports to confer upon the State Board of Pardons and Paroles any power to promulgate rules and regulations having the force and effect of law. See Glustrom v. State, ...
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