Brown v. State, 26825.

• Decision Date: 26 April 1938
• Docket Number: No. 26825.,26825.
• Parties: BROWN. v. STATE.
• Court: Georgia Court of Appeals

57 Ga.App. 864

197 S.E. 82

BROWN.

v.STATE.

No. 26825.

Court of Appeals of Georgia, Division No. 1.

April 26, 1938.

Syllabus by the Court.

1. The statement of the solicitor in his argument to the jury "that said Dee Brown [the defendant] is a gangster, " was improper, but in view of the instructions of the court to the jury, on objection by counsel for the defendant, it does not require the grant of a new trial.

2. Evidence held amply sufficient to support conviction for assault and battery.

Error from City Court of Danielsville; J. T. Murray, Judge.

Dee Brown was convicted of assault and battery, and he brings error.

Judgment affirmed.

L. S. Johnson, of Royston, and Joseph E. Webb, of Athens, for plaintiff in error.

Clarence E. Adams, Sol., of Danielsville, for the State.

GUERRY, Judge.

The accusation charged the defendant with a misdemeanor, "For that the said D. Brown in the County aforesaid, on the 22nd day of September in the year of our Lord, 1937, did, with force and arms, then and there unlawfully attempt to commit a violent injury on the person of C. C. Echols, and the said D. Brown did then and there unlawfully beat the said C. C. Echols, contrary to the laws of said State, the good order, peace and dignity thereof." The jury found the defendant guilty as charged. Exceptions are taken to the overruling of the motion for new trial as amended.

1. The substance of the only ground of the amended motion for new trial is as follows: In his argument to the jury, the solicitor charged "that said Dee Brown is a gangster." Counsel for the accused made a motion for mistrial which the court overruled after instructing the jury as follows: "Gentlemen, disregard what Mr. Adams has said about gangsters. Those remarks are improper, and you must deckle the case on the evidence introduced." The court also instructed counsel to refrain from referring to matters not authorized by the evidence in the case. The statement of the solicitor was not authorized by the evidence introduced at the trial. The statement was therefore improper. The Supreme Court and this court have heretofore in many instances expressly condemned such conduct and we now reiterate what has been already expressed, that counsel should confine their argument to the facts, and such authorized inferences arising from the facts, as are properly before the court and the jury. Especially do we think it the duty of a solicitor to cautiously refrain from making statements in his argument to the jury which are unauthorized, and which will tend to prejudice the jury against the defendant. While a solicitor is necessarily a partisan, yet it is his paramount duty "to subserve public justice" (Hicks v. Brantley, 102 Ga. 264, 271, 29 S.E. 459, 462) and not merely to convict each defendant charged with a violation of the laws of this State. "While the safety of society requires the faithful prosecution of offenders against the laws, the State does not ask their conviction but upon a calm and dispassionate investigation of the charges against them." Jesse v. State, 20 Ga. 156 (10), 169. Thus, while we expressly disapprove the conduct of the solicitor, we are not prepared to hold that it requires the grant of a new trial, in view of the instruction of the court to the jury to disregard the statement. The statement was not of a character so inherently prejudicial that its effect could not be erased from the jury's mind by an instruction from the court that it was improper and should not be considered.

2. We will now consider the general grounds of the motion for new trial. Itappears from the evidence that the prosecutor was a constable for the 204th district of Madison county, Ga, and that the alleged assault occurred on the courthouse square in the city of Danielsville in that county. The prosecutor, in his capacity as constable, had a warrant for the defendant's arrest, and informed the defendant of this fact upon seeing him in a neighboring town, at which time the defendant promised to come to Danielsville and make bond. When the defendant came to Danielsville he brought with him Mr. Boyd Butler and Mrs. I. R. Heideberg. The prosecutor was sitting on a bench in the court house yard and defendant and Mr. Butler approached him, the defendant saying that he was ready to give bond. The prosecutor's version of the affair from this point on was as follows: "D. Brown said he wanted to give bond and we got up and started towards the court-house. I told him that the sheriff would have to take the bond. D. Brown was on my left and Boyd Butler on my right. We made about four steps, and D. Brown stepped in front of me and took my hand and asked me if I was not going to take the bond, and I told him that the sheriff would have to take the bond. He twisted my hand and jerked me around, and said 'Here is my bondsman.' Boyd Butler struck me in the face and knocked me down. * * * I said nothing and did nothing to either D. Brown or Boyd Butler to cause them to assault me." J. T. Baker was standing close by, and was an eye witness to the alleged assault. He testified in part: "I was on the court-house square in Danielsville talking with Mr. G. L. Williams, and saw Mr. C. C. Echols, Mr. D. Brown and Mr. Boyd Butler standing talking. I heard him say something in regard to giving a bond, and Eohols said he...