Bloodworth v. State
| Decision Date | 17 November 1925 |
| Docket Number | 4996. |
| Citation | 131 S.E. 80,161 Ga. 332 |
| Parties | BLOODWORTH ET AL. v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied Dec. 17, 1925.
Syllabus by the Court.
A trial by jurors who are for any reason disqualified is illegal, and the verdict of such jury is no lawful verdict and must be set aside. The poisoning virus from one prejudiced juror is in law presumed to contaminate the entire body, and thus to make a fair trial impossible. However, although there may be evidence adduced before the trial judge sufficient to establish the disqualification of a juror whose qualifications are attacked because of alleged prejudice and bias, still the trial judge is the sole trior as to this issue; and where a countershowing is made to the attack upon the impartiality of a juror, the comparative weight of the testimony introduced in support of the countershowing, with the testimony tending to show prejudice and bias. is a matter for the exclusive determination of the trial judge, and the exercise of his discretion will not be controlled unless there appears to have been a manifest abuse of discretion. In the present case there appears to have been no abuse of discretion, and the court did not err in overruling the motion for a new trial, based upon the principle that the defendants were entitled to a jury omni exceptione majores.
The exceptions contained in the fourth, fifth, sixth, and seventh grounds of the amendment to the motion for a new trial, each of which relates to the propriety of instructions which should not or should be given to the jury with relation to the recommendation to mercy or to imprisonment in the penitentiary for life in capital cases, are without merit. The instructions as given were in some respects more favorable than the requests which were refused, and fully presented to the jury the principle that the right of the jury trying a capital case to recommend the accused to mercy or to recommend that they be imprisoned in the penitentiary for life, is wholly a matter within their discretion unaffected, unhampered, and unrestricted by any rule of law and not hampered by the requirement that they be based upon any reason other than the wishes of the jurors.
The court charged the jury that the defendants entered upon their trials with a legal presumption of innocence in their favor and that this legal presumption remains with the defendants throughout the trial, etc. Even if the denomination of the presumption as being one of law by the use of the word "legal" be not so strictly accurate as to have instructed the jury that this presumption is in the nature of evidence and remains with the defendants throughout the trial, the substitution was favorable to the defendants, and there is no merit in the exception as presented in the assignment of error.
In the request for an extension of the time allowed by law for argument, counsel for the plaintiffs in error failed to state that they could not do the case justice within the time prescribed, and that it would require additional time for that purpose; and for this reason, as matter of law, the court did not err in refusing to extend the time for argument. Moreover, aside from the rule, the exception is without merit, because the trial judge had informed the counsel, selected to make the concluding argument for the defendants, before his argument began, that he would not stop him if he should exceed the allotted time, and yet counsel completed his argument without having consumed even the remainder of the time allowed by law which had not been consumed by his associates.
(a) Since it does not appear that either of the defendants was represented by counsel who did not represent the other, and the defendants waived their right to sever and be tried separately, the court was authorized to treat the case, so far as the number of arguments was concerned, as one trial, and did not err in refusing a request that four attorneys be permitted to argue the case in behalf of the defendants.
It is not illegal to hold court at night. Since there did not appear, from the showing made by counsel for the plaintiffs in error before the trial court, any sufficient reason why the trial should not proceed by hearing a portion of the arguments after supper, reserving the concluding argument in behalf of each party until the following morning, the exception presented in the tenth ground of the amended motion is without merit. The mere fact that counsel may be tired, without more, is not a sufficient reason for suspending an important trial either by day or by night.
Under the provisions of Pen. Code 1910, § 1027, there was no error in admitting certain evidence which it is admitted was given on a former trial upon the same issue and between the same parties, which was objected to by the accused upon the ground that the testimony, which was that of a deceased witness who had testified at the former trial, contained references to certain physical objects, and for that reason was inadmissible unless said physical objects, "the articles had at the former trial [meaning suitcases, raincoat, collar, undershirts, pants, overalls, and grip] were in court now." This is true, although the aforementioned articles were not produced in court at the trial now under review nor offered in evidence, and even though the state did not account for their absence. The admission of the testimony just referred to, taken from the approved brief of evidence on the former trial, which was used upon the hearing of the motion for a new trial in the former trial, did not prevent the accused from themselves presenting any of the articles which may have been introduced as objective or physical evidence in the former trial. In an instance where one party introduces only the written transcript of the oral testimony of a witness, the opposite party has the right to prove additionally other testimony given by this witness at that trial and not included in the brief.
Error from Superior Court, Muscogee County; C. E. Roop, Judge.
Gervis Bloodworth and another were convicted of murder, and they bring error. Affirmed.
Homer Beeland, of Reynolds, C. W. Foy and W. E. Steed, both of Butler, and J. M. Hatcher, of Columbus, for plaintiffs in error.
W. R. Flournoy, Sol. Gen., and Geo. C. Palmer, both of Columbus, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
This case has previously been before this court, and is reported in 159 Ga. 67, 124 S.E. 888. In that instance the jury found both of the defendants guilty, without recommendation, and this court affirmed the judgment of the trial court in overruling the motion for a new trial. This court again considered certain questions relating to the sentence and its enforcement in Bloodworth v. State, 160 Ga. 197, 127 S.E. 458, and by affirming the judgment of the superior court decided adversely to the contentions of the plaintiff in error. Upon an extraordinary motion for a new trial the defendants were thereafter granted a new trial; the motion being based upon the ground that one of the jurors who had rendered the verdict was disqualified, by reason of which the previous trial was in law a nullity. As well said by Mr. Justice Atkinson in Myers v. State, 97 Ga. 76, 91, 25 S.E. 252, 258:
In a criminal case involving the life or liberty of one accused of crime, even if the defendant be apparently clearly guilty, he is as much entitled to his fullest legal rights as if he were as innocent as an angel. The preservation of liberty and society itself depends upon the unswerving observance of this rule, and the consciousness that the right of a fair impartial, legal trial is unquestioned and unquestionable. In consequence of the overshadowing importance of these principles, we have made a painstaking investigation of every point suggested in the record in order to ascertain if these defendants, or either of them, has been deprived of any right accorded him by law. The skeleton motion for a new trial, embracing the usual general grounds, including the usual complaint that the verdict is contrary to the evidence and without evidence to support it, might in a strictly technical view be treated as abandoned. But we have carefully considered the brief of the evidence in the present trial, and find not only that the proof of guilt is overwhelming, but also that the defendant Jones, not even denying his guilt, merely made a plea for mercy, so that he might serve a sentence for life, which he vowed to devote to the service of the Almighty. Nor does the defendant Bloodworth in his statement, though he vigorously attacks the testimony of one of the witnesses for the prosecution as being false, deny evidence from other witnesses to the same effect as that of the witness who he says swore falsely. The argument of the case before this court and in the brief has been...
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