Bryant v. State
| Decision Date | 06 April 1944 |
| Docket Number | 14802. |
| Citation | 30 S.E.2d 259,197 Ga. 641 |
| Parties | BRYANT v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied May 5, 1944.
Syllabus by the Court.
1. Where in a case previously brought to this court, error in the admission of incriminatory statements and confessions as not having been free and voluntary was alleged, and a ruling was made thereon; and where the same question is again raised in the same case, upon its second appearance in this court and it appears that on the second trial the evidence as to the circumstances under which the admissions and confessions were made was substantially the same as on the first trial; the ruling of this court in its first decision is 'the law of the case,' and a final adjudication of such question.
2. Where a defense of mental incapacity to commit a crime is interposed, and several defense witnesses testify in various degrees as to the lack of mental capacity of the accused; and where the State has introduced two written statements identified as having been taken down in the language of the accused; it is a proper subject of cross-examination for the solicitor-general to read such statements to the witnesses in order to elicit answers whether the ability of the accused to make the statements displayed such memory, association of ideas, and ability to relate events in a chronological order, as would affect the opinion and testimony of the witnesses as to the mental condition of the accused.
3. Where a person testifies that certain articles of clothing exhibited to him are similar to those worn by a suspect in a murder case, whom the accused is attempting to identify as the guilty party, it is proper to exclude hearsay testimony identifying the ownership of the clothing as being that of the suspect. This evidence does not come within the exception to the hearsay evidence rule as provided in the Code, § 38-302.
4. It is improper for counsel to remark upon the force or effect of evidence while it is being submitted to the jury. But where the remark is not prejudicial or inflammatory, and is withdrawn by counsel, and the court gives proper instructions to the jury, a mistrial is not required.
5. The side remarks or 'side bar' remarks made by the solicitor-general in the presence of the jury, to a witnesses who was leaving the stand, while improper, were not prejudicial or inflammatory, and in view of the instruction given by the court to the jury, did not require the grant of a mistrial.
6. A question, which was predicated upon a fact not in evidence, and called for an answer merely illustrating the operation of the witness' mind and his conclusions as to what he would have done under an assumed state of facts, was properly excluded.
7. Where an accused had been previously tried for the same offense and a new trial granted, and where, at the second trial, during the examination of a witness who had testified in the previous trial but did not recall the date thereof, the solicitor-general exhibited to the witness a paper, pointed out a date thereon and asked, 'That is the jury's notation. 19th day of February, 1940?' this question was not tantamount to a statement by the solicitor-general that the previous jury had found the accused guilty, and the court did not err in refusing to declare a mistrial.
8. Where a defense witness is undergoing direct examination by counsel for the accused, and, to a statement made by the witness, the solicitor-general says: such statement is not prejudicial to the accused, and the trial judge properly overruled a motion to declare a mistrial.
9. Statements by a third party to the effect that he, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused upon his trial.
(a) Nor does the fact that the party, whose confession is sought to be introduced, is in another State and unavailable as a witness, or that there is testimony tending to establish the guilt of the one making such confession, change the foregoing rule.
10. In the charge of the court on the subject of reasonable doubt, it was not error to include the phrase, 'a doubt for which you can give a reason.'
11. The portion of the charge of the court complained of, on the subject of the defense of insanity, the burden of proof, and the consideration of the evidence of insanity in connection with other evidence in the case in the event the burden of establishing insanity had not been carried by the accused, was not an expression of opinion.
12. Where a ground in an amended motion for new trial is based upon newly discovered evidence, and the affidavits setting forth the details thereof contain much that would not be admissible in the event of another trial; it is proper for the trial judge and for this court in passing upon this ground to consider only such portions of the alleged newly discovered evidence as would be admissible in the event of another trial.
(a) Considering only such parts of the alleged newly discovered evidence as would be relevant and admissible in the event of another trial in the instant case, such evidence did not require the grant of a new trial, and the trial judge was correct in so ruling.
Benning M. Grice and W. A. Bootle, both of Macon, for plaintiff in error.
Chas. H. Garrett, Sol. Gen., of Macon, T. Grady Head, Atty. Gen., and L. C. Groves, Asst. Atty. Gen., for defendant in error.
1. The plaintiff in error was tried for murder, convicted, and sentenced to electrocution. A motion for new trial was overruled, and is here for review. The record and the briefs are voluminous, containing a thousand pages.
The case was previously before this court. See Bryant v. State, 191 Ga. 686, 13 S.E.2d 820.
The evidence relied upon to sustain a conviction was proof of the corpus delicti, incriminatory admissions, confessions, and some evidence in corporation of a confession. If the confessions and incriminatory admissions were properly admitted in evidence, as being freely and voluntarily made, under the Code, § 38-411, there would be sufficient evidence to authorize the verdict; otherwise the evidence would be insufficient.
Under grounds numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 14, 15, 16, 17, and 18 of the amended motion each relating to evidence of different witnesses who testified in reference to admissions or confessions by the accused, the evidence under which the admissions and confessions were admitted is attacked as not establishing either as having been freely and voluntarily made. It is insisted that all evidence relating to admissions or confessions was the result of wrongful conduct on the part of the State's witnesses, and especially the conduct and questioning by two of the State's witnesses, deputy sheriffs Waldron and Stokes, and that this conduct was such as to preclude any evidence of admissions and confessions because the influence of the alleged coercion by these officers and other witnesses extended to and covered all admissions and confessions, and made them inadmissible as also coerced.
When the case was previously before this court, Bryant v. State, 191 Ga. 686, 13 S.E.2d 820, supra, this same question was raised and ruled upon, and the evidence relating to the circumstances under which such evidence was admitted is set forth in that decision. Comparing the evidence relating to the admission of admissions and confessions which was adduced on the previous trial, with that in the instant case, it is found to be substantially the same. In the first trial there was evidence that the two deputy sheriffs, at the request of the accused, had given to him a total of about 50 cents to purchase tobacco and soft drinks, which evidence does not appear in the record of the second trial. Also, there was evidence in both trials that at the time the officers talked to the accused they were wearing their pistols, although nothing appears in the evidence reported in the former decision, except that the defendant in his subsequent statement said that the officers had their pistols, and one of the State's witnesses testified that on one occasion the officers had with them the gun which it was claimed the defendant had used. Other than these instances there is no difference in substance, but only in phraseology.
In passing upon this evidence in the previous decision, this court held as a matter of law, that the question of the voluntary character of these admissions and confessions was for the jury, and that it would not reverse the ruling admitting them in evidence. 'A judgment of a trial court granting or refusing an injunction, when the same depends entirely upon a question of law, is upon its affirmance by the supreme court, a final adjudication of such question.' Ingram v. Trustees of Mercer University, 102 Ga. 226, 29 S.E. 273; Hughes v Morrison, 141 Ga. 476, 81 S.E. 202; City of Atlanta v. First Methodist Church, 83 Ga. 448, 10 S.E. 231; Georgia Railway & Power Co. v. Town of Decatur, 153 Ga. 329, 111 S.E. 911. Central Railroad v. Coggin, 73 Ga. 689, 695. Points of law decided by this court are res adjudicata upon another appearance of the same case. Lewis v. Hill, 87 Ga. 466, 13 S.E. 588. In referring to a previous decision in the same case, it was stated: 'Whether this decision be right or wrong, it is the law of this case;...
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