Cady v. State, No. 14842.

• Court: Supreme Court of Georgia
• Writing for the Court: JENKINS
• Citation: 31 S.E.2d 38
• Parties: CADY. v. STATE.
• Docket Number: No. 14842.
• Decision Date: 08 June 1944

31 S.E.2d 38

CADY.
v.
STATE.

No. 14842.

Supreme Court of Georgia.

June 8, 1944.

Rehearing Denied July 18, 1944.

Writ of Certiorari Denied and Appeal Dismissed Nov. 20, 1944.

See 65 S.Ct. 190.

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[31 S.E.2d 41]Syllabus by the Court.

The verdict was authorized by the evidence; and none of the special grounds of the motion for new trial, which are dealt with in the opinion, authorize the setting aside of the verdict.

Error from Superior Court, Coffee County; Walter Thomas, Judge.

Eurus Cady was convicted of murder, and he brings error.

Affirmed.

The defendant Eurus Cady was convicted on an indictment charging him with the murder of Tom Burden with a recommendation for mercy, and was sentenced to life imprisonment. The verdict for murder was authorized but not demanded by the evidence. Sylvester Hardwick, the only eyewitness, testified for the State in substance that at the time of the killing, Eurus Cady, the defendant, was fighting with Tom Burden, the man who was killed, both fighting with bare hands; that they fell on the ground still scuffling; that he was on the outside when the scuffling began and went into the building while they were scuffling. "I was inside the building long enough to count $3.30 in change * * * then I went back out. When I came out Mr. Burden was getting up and Mr. Cady was standing up. I saw Mr. Cady shoot Mr. Burden once, and then Mr. Burden sort of turned as if to run, and Mr. Cady shot him again. Mr. Burden staggered and fell to the ground, and Mr. Cady shot him twice more"; that at the time of the first shot they weren't very far apart and Burden, who had been down on all fours, was about half standing up and threw up his hands and the witness did not see anything in them; that after the first shot "Burden turned as if to run from Mr. Cady. I would say he had gone four or five feet before the second shot was fired. Mr. Burden whirled and grabbed his side like a person holding a football. * * * Mr. Cady shot him twice after he fell. There were four shots in all." In another portion of his testimony he said: "After Mr. Burden was shot I would say he went fifteen or sixteen feet before he fell." Again he testified: "There was one shot and then a pause, and then the other shots. They were fired one after the other, just like a man would be shooting at something." The homicide occurred outside of a filling station and Hardwick's testimony was to some extent contradictory, in that on cross-examination he testified: "I was not outside when the shooting occurred. I was inside long enough to count $3.30 in tips that I had in my pocket * * * and I was not interested in the fight that was going on outside." He was also sought to be impeached by admissions of contradictory statements made at the coroner's inquest as follows: "I went right on back through the building and goes into the back that is when I heard the first shots fired. * * * When I first heard the shots I was at the latrine outside of the building. It is on the opposite side of the building from where the shots were fired. * * * All the shots I heard was while I was at the latrine. I did not see any of the shots fired, " and was also sought to be impeached by his statement at the inquest: "I also made the statement that 'When they were both on the ground rolling over and over, Mr. Tom (Burden) had something in his hand, but I couldn't tell you what it was, ' that is true." There was testimony that a wrench was found on the ground where the scuffling had occurred. The physician who examined the deceased shortly after the killing testified that four bullets entered the body, one through the left arm, one through the chest ranging to the right, one in the neck which entered just to the left of his Adam's apple and came out just under the right ear and one ranged down the spine in his back. He testified that "The injury through the neck was, of necessity, the fatal wound"; that the chest wound may have knocked him down but may have left him standing; that the only powder burn he saw on the body was on the neck and that the neck wound could have been fired by a man on the ground at a man standing above him some distance away. The defendant in his statement said that,

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Burden came to his place of business at about 10 o'clock on the night before the homicide very much under the influence of liquor and continued drinking; that Burden attacked another patron and three times they had to be separated; that at about four o'clock in the morning Burden went out and got in a patron's car and lay down; that at about 5 o'clock this patron wanted to leave and finally got Burden out of his car mad and wanting to fight; that the defendant prevailed on Burden to leave him alone and Burden then turned on the defendant and struck him with a wrench on the side of the head, knocking him down and leaving a scar an inch and a half long, which he pointed out to the jury; that as he started to get up Burden knocked him down again, kicked him and twisted his foot and then seeing the defendant's wife standing there and pleading: "Please, Tom, stop; don't do that, " he turned the defendant loose and said "Miss Fatty, I will kill you, too, " and that as he drew back his hand to strike her, the defendant could see that wrench and he realized he had to do something quick to save his and his wife's lives and pulled his pistol and fired the shots from the ground in very rapid succession; and that Sylvester Hardwick wasn't present and didn't see any of it. Dr. T. H. Clark testified for the defendant that he had examined the defendant two or three months before and found an infection and ruptured drum in the right ear which could have resulted from a blow or fall of such force and in such manner as would have compressed the air in his ear.

E. L. Grantham and R. A. Moore, both of Douglas, for plaintiff in error.

David C. Sapp, of Douglas, John W. Bennett, Jr., Sol. Gen., of Waycross, and T. Gray Head, Atty. Gen., and Victor Davidson, Asst. Atty. Gen., for defendant in error.

JENKINS, Presiding Justice.

1. The first of the special grounds dealt with a challenge to the array of jurors, the attack being made on several grounds:

(a) "Where a juror is put upon a defendant being tried under an indictment for a criminal offense, and is peremptorily challenged by the defendant, the juror is not so disqualified that he could not again be put upon the defendant at a subsequent trial for the same offense under the same indictment, either because the defendant would thereby be deprived of his full 20 strikes, or because it would deny to him his constitutional right of a fair and impartial trial and equal protection of the laws." Esa v. State, 146 Ga. 17, 90 S.E. 278; see also Coleman v. State, 141 Ga. 731(1), 82 S.E. 228; Nixon v. State, 121 Ga. 144, 145 (5), 48 S.E. 966. Accordingly, the fact that the panel may have included the names of certain jurors, who had appeared in a panel presented in a previous trial of the defendant and who had been peremptorily challenged by the defendant does not constitute a good ground of challenge to the array.

(b) "Under our law as it stands, females are not subject to jury duty, it being provided in the act of the General Assembly approved August 13, 1921 (Acts 1921, p. 106), that 'females shall not be liable to discharge any military, jury, police, patrol, or road duty.' * * * And this law is not obnoxious to the Nineteenth Amendment to the Constitution of the United States, which reads as follows: 'The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.' This amendment to the Constitution does not contemplate that the state shall be required to place the names of females in the jury box." Powers v. State, 172 Ga. 1(4), 157 S.E. 195. See also Rawlins v. State, 124 Ga. 31(1), 52 S.E. 1, affirmed in 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899, 5 Ann.Cas. 783; Griffin v. State, 183 Ga. 775(1), 777, 190 S.E. 2. Accordingly the challenge to the array as set forth in subsection (b) is without merit.

(c) The challenge to the array of a second panel of jurors after the first panel of forty-eight jurors had been exhausted is not good on the ground that the striking of jurors cannot proceed until a second full panel of forty-eight jurors has been completed. In McGuffie v. State, 17 Ga. 497(4), it was held that: "It is within the discretion of the Court to determine the number of which the panel of tales Jurors shall consist in capital cases, and the number of panels which may be at the same time summoned." See also Cason v. State, 134 Ga. 786(1), 68 S.E. 554. Accordingly, this ground of objection is without merit.

(d) The defendant complains that the panel of jurors was an illegal panel because there were no properly selected jurors in the jury box from which a panel

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could have been selected since the tax commissioner did not supply to the jury commissioners the names on the list going into the jury box, and for the further reason that the law requires the jury commissioners to be supplied by the tax receiver with the names; and for the repeated reason that there were no women jurors on the list. Section 59-106 of the Code provides that "Biennially, or, if the judge of the superior court shall direct, triennially on the first Monday in August, or within 30 days thereafter, the board of jury commissioners shall revise the jury lists. The jury commissioners shall select from the books of the tax receiver upright and intelligent men to serve as jurors". We agree with the State's counsel that "what is meant by the books of the tax receiver is the tax digests, which under the law consist of three copies, one of which is placed in the hands of the State revenue commissioner, another in the possession of the tax collector and the other in the hands of the ordinary...