Cade v. State

• Decision Date: 11 July 1950
• Docket Number: No. 17152,17152
• Citation: 60 S.E.2d 763,207 Ga. 135
• Parties: CADE v. STATE.
• Court: Georgia Supreme Court

Page 763

60 S.E.2d 763

207 Ga. 135

CADE v. STATE.

No. 17152.

Supreme Court of Georgia.

July 11, 1950.

Syllabus by the Court.

1. So much of the body of the act approved February 25, 1949 (Ga. L. 1949, p. 1082), as purports to confer upon counsel for the defendant in criminal cases the right to cross examine individual jurors as therein provided, is unconstitutional and void, because violative of article 3, section 7, paragraph 8 of the Constitution of 1945 (Code, Ann., § 2-1908), which provides that 'No law shall pass which * * * contains matter different from what is expressed in the title thereof.'

2. The trial court did not err in overruling the motion for a new trial.

Charles Cade was indicted in Richmond Superior Court for the murder of one J. K. Joe, a Chinese merchant. The record discloses that this defendant, along with Curtis Wynn, Lincoln Mays, James Smith, and Johnny Hardge, formed and carried out a conspiracy to rob the deceased; that the deceased was a Chinaman about fifty years of age, and under the testimony of the coroner's physician, when his body was found, had been cut across the eyes, face, forehead, and nose, and his nose was broken; that there were numerous lacerations, and the right common carotid artery was severed by a stab wound in the neck, which caused immediate death. This defendant, in a written, sworn statement, which was admitted in evidence without objection, stated that he cut the deceased with a butcher knife to make him tell where the money was and to make him open his safe; that he called for the butcher knife to finish the deceased up after he had been robbed and tortured, but, in his statement, contended that the stab in the neck was made by Lincoln Mays just before they left the scene of the homicide; that this defendant, Curtis Wynn, and Lincoln Mays, left the scene of the homicide and went to a described house, where they divided the money. There was evidence by one of the State's witnesses that the defendant had stated to him that he killed the Chinaman, that he cut his damn throat, and in his statement to the jury the defendant stated that he handed the butcher knife to Lincoln Mays when he said, 'he is not dead,' and told Lincoln Mays to finish killing him, and that Lincoln Mays took the knife and cut him. These statements of the defendant were corroborated in many particulars by other evidence.

When the jury had been purged as to relationship by the court, and the Solicitor General had put the usual voir dire questions to the first juror, and then informed the defendant that the juror was on him, counsel for the defendant, basing his request upon the act approved February 25, 1949, Ga. L. 1949, p. 1082, moved the court that he be allowed to ask each individual juror the following list of questions: '(1) What is your occupation? (2) What is your religious denomination are you [sic]? (3) Do you attend church regularly? (4) Do you belong to any social or fraternal organizations? (5) Do you belong to any organizations that Messrs. Hains, Curry, and Kennedy are members of? (6) Were you still impartial toward the defendant, Charles Cade, after reading the accounts of the crime in the local papers? (7) What is your age? (8) Do you still feel unbiased after reading these articles in the Augusta Herald? (9) Do you do any business or have business with the local Chinese? (10) Have you any business or social connections with Mr. Curry or Kennedy? (11) Have you had any business or social connection in the past with Mr. Curry or Kennedy?'

The trial court made the following ruling: 'I overrule your motion for that because that applies to civil cases only and doesn't apply to criminal cases; if it does, the act is unconstitutional because the caption of the act says nothing in regard to criminal cases, nor does that act seek to add to the general questions of the voir dire.' After this ruling the defendant struck the first juror, and to the ruling and judgment of the court the defendant excepted pendente lite and in the only ground of the amendment to the motion for a new trial.

The jury returned a verdict of guilty without recommendation. The defendant filed his motion for a new trial on the usual general grounds, and to the judgment of the trial court overruling his motion for a new trial as amended he excepts, and also assigns error upon his exceptions pendente lite above referred to.

William C. Calhoun, Augusta, for plaintiff in error.

George Hains, Sol. Gen., Augusta, Eugene Cook, Atty. Gen., Robert E. Andrews, Atlanta, for defendant in error.

HAWKINS, Justice (after stating the foregoing facts).

1. Counsel for the plaintiff in error expressly abandoned the usual general grounds of the motion for a new trial, and the only question presented for our determination is whether the trial court erred, as complained of in the exceptions pendente lite and in the only ground of the amended motion for a new trial, in refusing the request of counsel to be permitted to propound to each individual juror the questions set out in the statement of facts.

It is contended by counsel for the plaintiff in error that the trial court erred in holding that the act approved February 25, 1949, Ga. L. 1949, p. 1082, as applied to criminal cases, was unconstitutional because the title of the act made no reference to criminal cases.

It is true, as contended by counsel for the plaintiff in error, that this court has many times held that statutes should be construed in such way as to be consistent with the Constitution, if it can be done, and that the conflict between a statute and the constitution should be serious before the court declares the statute unconstitutional. Hope v. Mayor etc. of City of Gainesville, 72 Ga. 246; Smith & Co. v. Evans, 125 Ga. 109, 53 S.E. 589; Lamons v. Yarbrough, 206 Ga. 50, 55 S.E.2d 551. It is also true that this court has held that article 3, section 7, paragraph 8 of the Constitution, Code, Ann., § 2-1908, does not require that the title of an act should contain a synopsis of the law. Wright v. Fulton County, 169 Ga. 354, 150 S.E. 262; Williamson v. Housing Authority of Augusta, 186 Ga. 673, 199 S.E. 43; Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692. But this provision of our constitution does require that, 'No law shall pass that * * * contains matter different from what is expressed in the title thereof.' In Cady v. Jardine, 185 Ga. 9, 193 S.E. 869, it is pointed out that the court should ever keep in mind the history of the event that gave this provision of the Constitution birth, the evil it sought to prevent, and recognize the wisdom of the provision. One of the evils it sought to prevent was the insertion of clauses in the body of acts of the General Assembly of which the title gave no intimation, and their passage was secured from legislative bodies whose members were given no notice thereof by the title and who were not generally aware of the intention and effect of such clauses. Mayor etc. of City of Savannah v. State, 4 Ga. 26, 38; Howell v. State, 71 Ga. 224, 226, 51 Am.Rep. 259.

How stands the act now under consideration in the light of this clause of our Constitution? The title of the act is as follows: 'An Act to repeal in its entirety Section 59-705 of the Code of 1933, and to substitute in lieu thereof, a new section to be numbered Section 59-705, to provide that in all civil causes, it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail, or that he has a wish or desire as to which shall succeed, and that upon challenge made by either party upon either of these grounds, it shall be the duty of the court to hear such competent evidence respecting the challenge as shall be...