Brady v. State

• Decision Date: 08 June 1945
• Docket Number: 15129.
• Citation: 34 S.E.2d 849,199 Ga. 566
• Parties: BRADY v. STATE.
• Court: Georgia Supreme Court

34 S.E.2d 849

199 Ga. 566

BRADY v. STATE.

No. 15129.

Supreme Court of Georgia

June 8, 1945

Rehearing Denied July 6, 1945.[Copyrighted Material Omitted]

Syllabus by the Court.

1.In view of the action of the judge in rebuking the attorneys and his instructions to the jury, regarding alleged improper remarks by the solicitor-general and the attorney assisting in the prosecution, there was no merit in any of the grounds of the motion for a new trial based on the overruling of motions for a mistrial challenging such statements.

2.One who has been convicted of a felony, or a crime involving an intent to defraud, in a Federal court, is not thereby rendered disqualified to serve as a juror in a court of this State, there being no statute declaring such disqualification.

(a) Accordingly, in this case there was no merit in the ground of the motion for a new trial complaining of alleged disqualification of a juror discovered after verdict.

(b)The court did not err in overruling the motion for a new trial.

Ed Wohlwender, Jr., and Jos. S. Ray, both of Columbus, J. M. Rogers, of Buena Vista, and B. D. Murphy, of Atlanta, for plaintiff in error.

Arthur F. Copland, Sol.Gen., pro tem, of Columbus, and T. Grady Head, Atty. Gen., and Claude Shaw and Victor Davidson, Asst. Attys.Gen., for defendant in error.

John M. Brady was convicted of murder, without recommendation, in the alleged killing of his wife, Mrs. Lula Brady, by shooting her with a shotgun, and was sentenced to be electrocuted.He made a motion for a new trial on the usual general grounds, and by amendment added five special grounds.The motion as amended was overruled, and he excepted.

Special ground 1 assigned error on the admission of testimony.Special ground 2 complained that the court erred in overruling a motion to declare a mistrial because of alleged improper remarks by Mr. Copland, the solicitor-general, during the introduction of testimony.Special grounds 3 and 4 assigned error upon the overruling of similar motions based on alleged improper argument by Mr. T. B. Rainey, who assisted in the prosecution, and by the solicitor-general.Special ground 5 was based on alleged disqualification of a juror, discovered after the verdict.There is no insistence upon the first special ground, or upon the general grounds.The remaining grounds, stated more fully, were substantially as follows:

Special ground 2.The defendant contended that he did not know the gun was loaded, and that it was accidentally discharged when he was holding it in his hands and his wife grabbed it by the barrel and jerked it toward her.In this special ground, it appeared that the solicitor-general offered rebuttal testimony to the effect that, about a month before Mrs. Brady was killed, the defendant was seen to shoot in the direction of the house.The defendant's attorney objected to this evidence as having no bearing upon the case, whereupon the solicitor-general stated: 'It is in rebuttal, in rebuttal of the defendant's statement.He said he had no intention of hurting Mrs. Brady, that he had no idea the gun was loaded, and we are doing this to show the state of mind of a previous occurrence that happened.It is certainly admissible in rebuttal of his statement that he had no intention.'

The defendant's attorney then moved for a mistrial because of the quoted statement, contending that it was an attempt to place the defendant's character in issue, and was prejudicial.The judge excluded the testimony, rebuked the solicitor-general for having made the statement, instructed the jury not to consider it, and refused to declare a mistrial.

Special ground 3.This ground related to alleged improper argument by Mr. T. B. Rainey, who was assisting the solicitor-general in the trial of the case.

When the motion for mistrial was made, the judge stated: 'Unfortunately my attention was diverted and I did not hear the remark.'It appears that after some preliminary colloquy as to what Mr. Rainey had said, the following occurred:

By Mr. Rainey: 'I said there was only one question to pass upon in this case and that is whether they would give him a life sentence or have him electrocuted--or given life imprisonment, that he had already pleaded guilty to shooting his wife and killing her--Mr.Brady had.'

By the Court: 'Putting it that way, Mr. Rainey, I think it would be improper because he has filed a plea of not guilty, and it is for the jury to say whether he is guilty or not guilty.I think it was wrong on your part to have made the statement that he was guilty or that he had already pleaded guilty.That was incorrect, and I rebuke you for having made such a statement and ask you to stick to the evidence in the case in your argument of the testimony.Gentlemen, you will disregard that remark altogether and pay no attention to it.Cast it out of your minds altogether and let it have no influence on your minds.Proceed.'

Mr. Wohlwender renewed his motion, contending the 'prejudice' was not removed.

By the Court: 'Proceed.'

By Mr. Rainey: 'Your Honor means that I can't say Mr. Brady killed his wife?'

By the Court: 'Certainly not, Mr. Rainey.'

Mr. Wohlwender again moved for a mistrial, because of the latter remark by Mr. Rainey.

By the Court: 'He asked the court a question, and the court told him he could not do it.I overrule the motion.'

The ground of the motion for a new trial then alleged various reasons why, as the movant contended, it was error not to grant a mistrial.

Special ground 4.In this ground, it appeared that the solicitor-general, in his argument to the jury, stated: 'Not many

people who have ever been convicted and sentenced for life that have ever served the sentence.'

In overruling the defendant's motion for a mistrial, the judge stated: 'That was entirely improper.Confine your argument and observation to the testimony and the defendant's statement and the law of the case.I ask the jury to disregard that statement.Pay no attention to it.Let it have no effect on your mind or verdict.Put it out of your mind and only consider the evidence and the defendant's statement and proper arguments.Don't make it on remarks that are excluded.'

After this statement by the judge, the motion for a mistrial was renewed and overruled, and the argument proceeded.

Special ground 5.In this ground movant alleged that W. T. Bell, a member of the jury trying him, 'had plead guilty to an indictment in the United States District Court for the Middle District of Georgia for an offense involving moral turpitude, and was then and there under sentence of the United States District Court for the Middle District of Georgia for said offense.'Attached as exhibits to this ground of the motion were certified copies of an indictment, plea, and 'sentence' of the United States District Court, Middle District of Georgia, in the case of United States v. William Thomas Bell.The indictment was in four counts, the charges therein being as follows: Count one: That the accused 'did unlawfully, willfully, and knowingly, have in his possession and custody and under his control a still and distilling apparatus for the production of spirituous liquors, set up without having the same registered as required by law.'Count two: That the accused 'did unlawfully, willfully, and knowingly carry on the business of a distiller of spirituous liquors, without having given bond as required by law.'Count three: That the accused 'did unlawfully, willfully, and knowingly engage and carry on the business of a distiller of spirituous liquors, with intent to defraud the United States of the tax on the spirits distilled by him.'Count four: That the accused 'unlawfully, willfully, and knowingly did work in a distillery for the production of spirituous liquors, upon which no sign bearing the words 'registered distillery' was placed and kept, as required by law.'The date of each alleged offense was January 4, 1944.

The plea of guilty was entered on September 4, 1944.On September 8, the following 'sentence' was passed:

'The defendant having [sic](pleaded guilty), and it having been made to appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved by suspending the imposition of sentence and by placing the defendant under probation under the provisions of the probation act, approved March 4, 1925[18 U.S. C.A. § 724 et seq.], it is considered and adjudged that the imposition of sentence be and the same is hereby suspended for the maximum period for which the defendant might now be sentenced, and that defendant be and is hereby placed upon probation under the provisions of said act and upon the following terms and conditions:

'1.Defendant shall pay to the United States at this time $_____ as a condition of probation.

'2.The probation period shall be for three (3) years.

'3.Defendant shall report as directed by the probation officer, Charles E. Roberts, Macon, Georgia.

'4.During the maximum period for which defendant might now be sentenced, or during the period of probation, whichever is greater, the conduct and behavior of defendant shall be good in all respects, and he shall refrain from violation of any and all State and Federal penal laws, and from any activity, conduct, or behavior tending toward any such violation.* * *

'In open court, this 8th day of September, 1944.'

The verdict finding the defendant Brady guilty of murder was dated October 25, 1944.

This ground of the motion alleged that such plea of guilty and sentence of the juror W. T. Bell rendered him disqualified to serve as a traverse juror in the trial of the movant, that such disqualification was not known to the movant or his ...