Bryant v. State

• Decision Date: 17 June 1941
• Docket Number: 28869.
• Parties: BRYANT v. STATE.
• Court: Georgia Court of Appeals

16 S.E.2d 241

65 Ga.App. 523

BRYANT v. STATE.

No. 28869.

Court of Appeals of Georgia, Division No. 1.

June 17, 1941

Rehearing Denied July 28, 1941.

Syllabus by the Court.

John H. Hudson and E. Harold Sheats, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter LeCraw, and Daniel Duke, all of Atlanta, for defendant in error.

MacINTYRE Judge.

1. Raymond Bryant was indicted in thirteen counts for the offense of misdemeanor. Six counts were nol-prossed. A verdict of not guilty was directed on two counts, the defendant was acquitted on three counts and convicted on counts 1 and 8 charging the offense of assault and battery on James Wilkes and Joe Otwell respectively. The maximum sentence was imposed. It is conceded that the evidence authorized the conviction with reference to James Wilkes and only the special grounds are insisted on. With reference to Joe Otwell, both the general and special grounds are insisted on.

The jury were authorized to find from the evidence that a body of men, all members of the East Point Ku Klux Klan, took it upon themselves to punish certain members of their community against whom they had grievances of some sort, or people whom they charged with improper conduct. The Klan had what they called a "secret grievance committee" and on this committee were a number of individuals among whom were Dan Eidson, W. T. Walton, Walter Forster, Henry Cawthon and Raymond Bryant, the defendant in

this case. Their plan of operations was, at a meeting of the committee, to designate a certain individual against whom some member of the committee or the Klan had some personal grievance, such as the victim drank too much, or his conduct in the neighborhood was objectionable, or he was a member of a union, or the like. They would obtain fictitious warrants and in the dead of night when people had retired, and when the vigilantes thought they would be less likely to be detected, they would go to the homes of the victims, posing as officers of the law and exhibiting their warrants of arrest for some superficial charge of violation of law, and inveigle such persons from their homes into automobiles awaiting without on the pretense of carrying them to the police station, but instead would carry them out of town on some designated lonely road or to some woods. Then the victims would be taken from the car, stripped of their clothing, handcuffed, forced to lie face down on the ground and then "flogged" with a large leather strap or some other like instrument. After the bodies of the individuals were bleeding and suffering under the blows from their assailants, they were left to wander in the woods and find their ways back to town as best they could. Then these brave, courageous men of the night would get back into their automobiles and return to their homes, believing they had done the noble and righteous thing, but knowing their wrong, and wishfully thinking their practices would go unknown and unpunished. But the long arm of the law was not to be permanently inactive, and has finally reached out and brought to trial those who were charged with such violations of the criminal law. In the eyes of the law, this was not merely an assault and battery upon the bodies of individuals, but on the contrary it was an assault upon the whole organization of the courts and the law and order of this State. With every stroke of the whip, justice itself was being assaulted. If these individuals go unpunished, how could any citizen of this State be confident when the law enforcing officers of this State were being impersonated. The defendant and his cohort planned their attack and carried it out with organized precision. In affirming the verdict of the jury we might say that if the evidence produced by the State be the truth of the occasion, and the jury have seen fit to so declare it, the defendant might well be thankful that he has not suffered a conviction of a more serious offense. The evidence authorized the verdict.

2. "Conclusions by the trial judge upon preliminary and collateral issues, such as are made by a plea in abatement to an indictment, or a challenge to the array of the trial jurors, and a traverse to each respectively, can not properly be asserted as grounds of a motion for a new trial relating to the main and final issue as made by the indictment and the plea of not guilty." Herndon v. State, 178 Ga. 832, 174 S.E. 597, 598. Where in a criminal case such as this the defendant seeks to have this court consider a complaint as to the challenge to the array of the trial jurors, he may invoke a ruling of this court: (1) By excepting in the main or final bill of exceptions only, that is, without filing exceptions pendente lite, if he tenders his main or final bill of exceptions within twenty days from such ruling (Code, § 6-903); or (2) by tendering exceptions pendente lite before the final judgment (in this case an order overruling the motion for new trial), and have the same filed for the purpose of being made a part of the record as provided in Code, § 6-905, and when so made he may thereafter assign error in the main or final bill of exceptions on the pendente lite exceptions and on the rulings therein excepted to, in which event the defendant does not have to tender the main or final bill of exceptions until after the overruling of the motion for new trial, and then only within twenty days after the overruling of such motion.

Grounds 5 and 6 complain of improper remarks of one of the prospective jurors while the jurors were being stricken in voluntary response to a question on the voir dire, and of the response of the solicitor thereto. The objection was presented by challenge to the array (ground 5), and by motion for mistrial (ground 6). The defendant made a showing to the effect that the remarks were loud enough to be heard by a full panel of jurors sitting in the courtroom. The State made a counter showing that the remarks of the solicitor were not loud enough to be heard. The order of the trial court shows that when the challenge to the array was presented the jurors were recalled to the courtroom and were examined as to whether they had heard the remarks of the solicitor in reply to the remarks of the prospective juror as above indicated and after waiting a sufficient length of time for any of the jurors to answer, and none having answered, the judge construed the silence as meaning that none had heard the remarks, and overruled the challenge to the array. The defendant thereupon made a motion for mistrial as indicated in ground 6. Whether the remarks were loud enough to be heard presented a question of fact, the judge was the trior thereof, and his finding is final unless he abused his discretion. No abuse appears, and there is no merit in either of the grounds.

3. The witness Jackson was allowed to testify in effect that he did not say anything to Cawthon on the night he was flogged about what had happened to him, but the next morning he spoke to Cawthon, and Cawthon laughed at him and told him to hush up and not to say any more about it, and if he did he might get a worse beating than he had already received. The defendant objected to this testimony on the grounds that it was irrelevant and immaterial, and that the conversation had not occurred in the presence of the defendant. It is contended that the evidence was prejudicial and hurtful to defendant because it tended to show that Cawthon was guilty of an offense similar to that with which defendant was charged, and tended to connect defendant with Cawthon, and influenced the jury to believe that Cawthon, being guilty of an offense, it was probable that defendant was guilty of a criminal offense. Other evidence for the State established the existence of a conspiracy and that the defendant and Cawthon were members thereof. "Where evidence offered by the State shows prima facie a conspiracy between several persons to commit a crime, acts and declarations of any of them in an attempt to conceal the crime, already perpetrated, are admissible against all." Smith v. State, 47 Ga.App. 797, 171 S.E. 578; Nelson v. State, 51 Ga.App. 207, 212, 180 S.E. 16. The defendant and his co-conspirators were shown to have flogged Jackson, and this testimony was not inadmissible for any of the reasons assigned.

4. The judge did not err in refusing to allow counsel for the defendant to interrogate a witness for the State on cross-examination as to whether he had ever been on the chain gang. If the witness had ever been sentenced to the chain gang, then the admission of such fact would depend on whether the offense for which he was convicted was a crime involving moral turpitude or not. And as to this the record would be the highest and best evidence. Corley v. State, 64 Ga.App. 841 (3), 14 S.E. 2d 121.

5. Grounds 9, 10, 11, and 17 are controlled adversely to the contentions of the defendant by Walton v. State, Ga.App., 15 S.E.2d 455; Eidson v. State, Ga.App., 15 S.E.2d 452 (ground 4); Forster v. State, Ga.App., 15 S.E.2d 454 (ground 1).

6. The court did not err in admitting the testimony referred to in ground 12 or in ground 13, for other testimony to the same effect was introduced without objection, and the refusal to rule out the alleged illegal testimony was not reversible error. Rylee v. State, 44 Ga.App. 501 (3), 162 S.E. 291.

7. The admission of the evidence referred to in ground 14 does not disclose cause for reversal.

8. It was not error to allow the witness Lee to take the stand, on the ground that he did not answer any questions, but stood on his constitutional rights, and refused to answer any question on the ground that it would incriminate him, and that this silent witness greatly prejudiced the rights of the defendant. This...