Brown v. State

• Decision Date: 05 October 1964
• Docket Number: No. 40683,Nos. 1,2,3,40683,s. 1
• Citation: 110 Ga.App. 401,138 S.E.2d 741
• Parties: H. F. BROWN v. The STATE
• Court: Georgia Court of Appeals

Page 741

138 S.E.2d 741

110 Ga.App. 401

H. F. BROWN v. The STATE.

No. 40683.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 5, 1964.

Syllabus by the Court

A Georgia statute, Code § 81-1009, places an affirmative duly upon the trial judge to prevent on his own motion argument by counsel calculated to evoke prejudice against the adverse party, and the further duty, when an objection is made, to take positive action to eradicate its effect or, in his discretion, to declare a mistrial.

When a motion for mistrial is made based on improper argument reasonably calculated to appeal to or evoke racial prejudice, and the trial court has not heard the argument but overrules the motion without inquiring to ascertain what the improper argument was, and therefore without knowing the facts upon which the motion was based and without determining whether corrective action is needed, he fails to perform the duty imposed and exercise the discretion contemplated by the statute.

The defendant was indicted for the offense of assault with intent to murder and convicted of assault and battery. He assigns error on the overruling of his amended motion for new trial.

Howard Moore, Jr., Atlanta, for plaintiff in error.

George D. Lawrence, Solicitor Gen., Eatonton, for defendant in error.

HALL, Judge.

Special ground 4 of the defendant's amended motion for new trial reads as follows: 'Because the court erroneously overruled the defendant's motion for mistrial on the grounds that the solicitor general's argument to the jury was improper. Said motion having been made as follows: 'By Mr. Moore: I have an objection, Your Honor, in behalf of the defendant I move for a mistrial on the grounds of improper argument on behalf of the solicitor. By the Court: 'I overrule the objection.' Movant contends the motion was directed to the following remarks of the solicitor general, in substance, although the specific remarks objected to were not called to the attention of the court during the trial, to wit: (1) The defendant had gone to Decatur Street in Atlanta and gotten rebellious racial ideas; (2) Negroes should stop imitating us and do what they can do best; (3) defendant should be proud of his race; (4) some white people can't say Negro so they say something between Negro and Nigger, nigra; and (5) how he (the solicitor) wished he could sing and dance like they do. Further, because the court erroneously overruled the defendant's renewed motion for mistrial on the grounds of improper argument at the close of the solicitor general's argument to the jury. Said motion having been made as follows: 'By Mr. Moore: I renew the motion for mistrial on the grounds of improper argument to the jury. The Court: I overrule your motion.' As defendant contends, said argument of the solicitor general was, and is, highly prejudicial to the right of the defendant to a fair and impartial trial before his peers and was designed, intended and calculated to deprive the defendant of a fair and impartial trial in violation of Article, I, Paragraph III, Section I, Constitution of the State of Georgia of 1945 and of Section I, Fourteenth Amendment of the Constitution of the United States, even though no objection raising constitutional issues, was made during the trial.'

The trial court added a note on this ground stating: 'During arguments to the jury the court was engaged in preparing instructions for the jury and did not hear the statements alleged to have been made by the solicitor general, as set forth in the fourth special ground of the motion. This 20th day of December, 1963.' The order signed by the trial court approving this ground reads: 'The above and foregoing amended motion for new twial AND THE NOTE OF THE COURT THEREIN AS A PART THEREOF are hereby approved and made a part of the record in said case and ordered filed. This 20th day of December, 1963.'

It is contended that the trial court did not err in overruling the ground of the motion for new trial because it was in effect unapproved by the trial court. Lewis v. State, 7 Ga.App. 56, 65 S.E. 1072; Jones v. State, 25 Ga.App. 403, 103 S.E. 472. The record in the Lewis case reveals the following order of the court on the amendment to the motion for new trial: 'The court did not hear the statement alleged to have been made by the solicitor (that the defendant has been running a blind tiger for two or three years) and cannot say whether or not it was made--upon objection being made and motion to declare a mistrial made, the court overruled the motion and instructed the solicitor to confine his argument to the evidence in the case. With this explanation the above ground of the motion is approved and the amendment allowed, Aug. 23rd, 1909.' (Emphasis supplied.) The Jones record shows this note of the trial judge on the ground of the motion for new trial: 'The court does not remember the argument of State's counsel (that this was one of the plainest cases he had ever presented to the jury that the defendant was guilty of selling whisky, repeated half a dozen times, and lecture to jury on the advantages of the prohibition law) in the case and cannot say whether he did or did not use the language imputed to him. No objection to his argument was made at the time, no ruling of the court was invoked and none made thereon.' (Emphasis supplied.)

While the Lewis and Jones opinions stated that the trial court's qualification 'leaves the ground [of the motion for new trial] unapproved, and prevents its consideration by this court,' we are of the opinion that, due to the differences and other reasons for the judgments in those cases, they are not controlling in the present case.

In this case the trial judge's note on the ground stated only that he did not hear the alleged statements of the solicitor; it does not express any question in the judge's mind that they are true. The record shows that the amendment to the motion for new trial was served on the solicitor prior to the trial judge's notation and order of approval thereon. The record nowhere shows that the trial court or the solicitor questioned or disputed the accuracy of the ground. The trial judge ruled on the ground citing reasons and authorities for overruling it; he thus accepted and treated the ground as true. These facts distinguish this case from Glawson v. State, 146 Ga. 38, 90 S.E. 955 and from Monroe v. State, 88 Ga.App. 325, 77 S.E.2d 60, where the overruling of grounds of motions for new trial were affirmed because there was disagreement as to what occurred during the trial, and the trial court declined to approve the grounds based upon motions for mistrial because of unfair and inflammatory and improper argument, and from other cases in which approval of grounds of a motion for new trial (not based on improper remarks of counsel) was qualified because of conflict or disagreement as to the correctness of the record or ground. Gray v. Junction City Mfg. Co., 195 Ga. 33, 35, 22 S.E.2d 847; Brown v. Barnett, 214 Ga. 128, 103 S.E.2d 556; Dalton v. State, 215 Ga. 857, 113 S.E.2d 771.

The trial court in its order overruling the motion cited Pressley v. State, 207 Ga. 274, 278, 61 S.E.2d 113, holding a ground of a motion, complaining of a remark of counsel to the effect that a witness had sworn falsely, was incomplete when it did not aver that the remark was not based upon any evidence, and hence the remark would be treated as a deduction from the evidence. The effect of this remark was a comment upon the credibility of the testimony or the impact of the evidence. We are of the opinion that we should not treat remarks aimed toward popular prejudice as a deduction from the evidence, and hence a ground of a motion for new trial failing to aver that remarks of this character are not supported by the evidence would not be defective. Accord Ivey v. State, 113 Ga. 1062, 39 S.E. 423, 54 L.R.A. 959; Atlanta Coca-Cola Bottling Co. v. Shipp, 170 Ga. 817, 823, 154 S.E. 243, 71 A.L.R. 1295.

This view find support in Atlanta Coca-Cola Bottling Co. v. Shipp, 170 Ga. 817, 154 S.E. 243, supra, where the ground of the motion for new trial complaining of the failure to grant a mistrial did not aver that the improper remarks of counsel were not based upon any evidence. See record in Atlanta Coca-Cola Bottling Co. v. Shipp, Court of Appeals No. 19216. The Georgia Supreme Court there held that evidence that women inspectors employed by the defendant for examining its product 'were 'persons of color' was not admissible as a circumstance which the jury would have the right to know and consider, and which counsel for the plaintiff would have the right to comment upon, as illustrating the efficiency or lack of efficiency of such inspectors, where such inspectors were not introduced as witnesses, and neither party sought otherwise to establish their efficiency or lack of efficiency. * * * Even if such testimony was admissible for some other reason, as, for instance, a means of testing, on cross examination, the knowledge of a defendant's witness, and if such testimony was admitted generally, without limiting or restricting the purpose of its admission, counsel for the plaintiff would not have the right, in his argument before the jury, to comment upon the race and color of such inspectors as a fact or circumstance illustrating their lack of efficiency. * * * Whether the inspectors were white or black, or of any other color, would have no relevancy to the case. * * * The law knows no color; indeed, it is color-blind. The goddess of justice is represented with bandaged eyes in order that she may neither see or know either suitor, as she holds the scales of justice with an even and impartial hand.' Accord Mitchum v. State, 11 Ga. 615, 633; Augusta & S. R. Co. v. Randall, 85 Ga. 297, 11 S.E. 706; Cofield v. State, 14 Ga.App. 813, 82 S.E. 355.

The content of the solicitor's remarks had no relevancy in the present case, and, as a practical matter it was the sort...