Britten v. State
| Citation | 221 Ga. 97,143 S.E.2d 176 |
| Decision Date | 31 May 1965 |
| Docket Number | No. 22938,22938 |
| Parties | Earnest BRITTEN v. The STATE. |
| Court | Supreme Court of Georgia |
Syllabus by the Court
For reasons stated in the opinion, the trial court did not err in denying the amended motion for new trial.
J. Gordon Young, Roberts & Thornton, Jack M. Thornton, Lee R. Grogan, Columbus, for plaintiff in error.
W. B. Skipworth, Sol. Gen., Columbus, Eugene Cook, Atty. Gen., J. R. Parham, Asst. Atty. Gen., Atlanta, for defendant in error.
Earnest Britten was indicted in Muscogee County for the murder of James Lee McBride. When his case was called for trial, he waived formal arraignment, copy of the indictment, list of the witnesses sworn against him before the grand jury and entered a plea of not guilty. He was convicted of murder without a recommendation and was sentenced to be electrocuted. His amended motion for a new trial was overruled and the excepted to that judgment.
1. The first special ground of the motion for new trial alleges that the court, on motion therefor, erred in refusing to continue movant's case. This motion was made before arraignment. The same ground also alleges that the court erred in refusing, after the State had introduced its evidence and rested, to grant defendant's motion for a mistrial and a continuance of the case. These motions were based on the ground that one of his attorneys was absent. Respecting this, the record shows: The court appointed J. Gordon Young. Owen G. Roberts, Jr. and L. W. Grogan, three members of the Columbus Bar to represent the accused. Neither was appointed 'leading counsel.' They are all capable and experienced lawyers. At a term of the court prior to the one at which the accused was tried, the court on motion therefor, continued the case to give counsel ample time for trial preparation. When the case was regularly called for trial, Mr. Roberts was trying another case in the civil division of the same court and for that reason could not assist other counsel in the trial of this case. The motions for continuance and mistrial were based solely on his absence. The record, however, shows that Mr. Jack M. Thornton, Mr. Roberts' law partner, was present for the purpose of assisting in the trial and that he did actively aid in the trial. Applications for continuance are addressed to the sound legal discretion of the court, and, if not expressly provided for, shall be granted or refused as the ends of justice may require. Code § 81-1419. Clearly, this special ground of the motion presents no cause for a new trial.
2. Another special ground of the motion alleges that a new trial should be granted movant because the solicitor general on demand therefor refused to furnish the accused with a list of the witnesses whom he expected to use on the trial. This ground of the motion is not meritorious. The Constitution of this State requires the solicitor general, on demand therefor, to furnish the accused with a list of the witnesses on whose testimony the charge against him was founded (Code § 2-105, Const. art. 1, § 1, par. 5) but the law does not require the solicitor general to furnish the accused with a list of all of the witnesses he expects to use on the trial. Keener v. State, 18 Ga. 194(2): Inman v. State, 72 Ga. 269(1); Echols v. State, 101 Ga. 531(1), 29 S.E. 14; and Evans v. State, 210 Ga. 375(1), 80 S.E.2d 157. In the instant case the record shows that the accused made no demand for a list of only those witnesses who testified against him before the grand jury; and prior to being placed on trial, he waived in writing a list of the witnesses upon whose testimony the charge against him was founded.
3. 'When any person shall stand indicted for a felony, the court shall have impaneled 48 jurors, 24 of whom shall be taken from the two panels of petit jurors from which to select a jury. * * *' Code Ann. § 59-801. When the instant case was called for trial 48 jurors were impanelled and put upon the accused. They were sworn and the regular voir dire questions were propounded to them. During such examination, one stated that he was a member of the grand jury which indicted the accused and he was excused from service. A special ground of the motion for new trial alleges that the court erred in refusing his request to then call another juror from some other panel to replace him. There is no merit in this contention. Section 59-801 of the Code of 1933 declares that in all felony cases 48 jurors shall be impanelled and put upon the accused at the beginning of his trial; but if any one or more of the 48 are found to be disqualified for any cause the judge is not required at that time to replace him with another juror not on the four panels of 12 each put upon him. However by an act approved February 19, 1951 (Ga.L.1951, pp. 214, 216) Code § 59-705 was repealed and Section 2 of the 1951 Act (Code Ann. § 59-705) provides in part '* * * [i]n all criminal cases both the State and the defendant shall have the right to an individual examination of each juror from which the jury is to be selected prior to interposing a challenge.' Section 59-801 of the Code of 1933 and Section 2 of the Act of 1951 are in pari materia and should be construed together and when thus construed they mean that the defendant in a felony case is entitled to have 48 qualified jurors put upon him, each of whom he may individually examine or question prior to interposing a challenge. And when 48 qualified jurors cannot be obtained from the original four panels put upon the accused at the beginning of his trial, the judge shall continue to furnish additional panels of such number as he thinks proper (Code § 59-801) until 48 qualified jurors are obtained who shall then be put upon the accused. No contention is here made that 48 qualified jurors were not put upon the defendant prior to the time he was required to exercise his peremptory strikes. What is here ruled is in harmony with the decisions in Waller v. State, 213 Ga. 291(2), 99 S.E.2d 113; Blount v. State, 214 Ga. 343(3), 105 S.E.2d 304; and Ferguson v. State, 218 Ga. 173(1), 126 S.E.2d 798. Whitworth v. State, 155 Ga. 395(1), 117 S.E. 450, does not require a holding different from the one here made since that case was decided prior to the passage of the aforementioned act of 1951.
4. When the State concluded the introduction of evidence and rested, counsel for the accused announced that he would also rest. At this time the solicitor general asked the court to reopen the case and allow him to introduce two other witnesses, namely, Cobb Britten, Jr., and Cobb Britten, Sr. whose testimony, as he stated to the court, had been overlooked by him. His request was granted over objection by the accused that the State had rested its case and the introduction of further evidence by the State would be improper for stated reasons. His objection was overruled and the witnesses were allowed to testify. The witness Cobb Britten, Jr. testified that he and his brother Earnest Britten while drinking heavily agreed with each other to rob the Beverage Vault Package Store in Columbus, Georgia, which the deceased was operating; that he (Cobb, Jr.) pushed the deceased into a back room of the liquor store; that his brother Earnest got out his knife and went into the room where McBride was; that he tried to open the cash register but was unable to do so and his brother Earnest brought McBride back into the main room of the store to open the cash register; that his brother then pushed McBride back into the rear room of the liquor store; that he could hear fighting and stumbling in the back room but he did not known McBride was stabbed until he looked back there and saw blood; that the defendant Earnest Britten, after they left the liquor store, showed him a pistol which he said he had taken from the counter near the cash register in the liquor store and that they took during the robbery a stated sum of money from the liquor store and later equally divided it. Cobb Britten, Sr. testified that he was the father of the defendant Earnest Britten and Cobb Britten, Jr.; that Earnest went to the 10th grade in school and Cobb to the 11th; that he went with Attorney Young to the jail where his sons were confined for the murder of McBride; that he advised his sons to tell the attorney the truth about the robbery and murder; that Cobb, Jr. stated to the attorney, in the presence of the defendant Earnest Britten, that they had committed the act jointly but that the defendant Earnest Britten was the one who actually stabbed McBride; that the defendant earnest Britten at that time made no denial of Cobb, Jr.'s statement; and that the defendant Earnest Britten left Columbus during the night following the robbery and the killing of McBride. After these two witnesses had testified, the accused moved to exclude their evidence on the ground that it was given after the State had rested and that it was not in rebuttal of anything offered by the defendant. This motion was overruled. The amended motion for new trial assigns error on the orders overruling his objection and his motion to rule out the testimony of the two witnesses who were permitted to testify after the State rested, and after the defendant had announced that he would also rest without offering evidence of making any statement to the jury. There is clearly no merit in this assignment of error. In the early case of Bigelow v. Young, 30 Ga. 121, it was held that 'It is within the discretionary power of the court to allow a witness to be sworn after the evidence on both sides has been announced closed and the argument has been commenced; and a liberal practice in this respect is most favorable to the ends of justice.' And in Burden v. State, 182 Ga. 533, 534(3), 186 S.E. 555, this court unanimously held that it was within the discretionary power of the trial judge to reopen the case and allow the State to introduce further testimony...
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