Caesar v. State

• Decision Date: 18 February 1907
• Parties: CAESAR v. STATE.
• Court: Georgia Supreme Court

57 S.E. 66

127 Ga. 710

CAESAR v. STATE.

Supreme Court of Georgia

February 18, 1907

Syllabus by the Court.

When a person on trial for murder is found guilty of that offense but with a recommendation by the jury that he be imprisoned for life in the penitentiary, he is convicted of a capital felony, and a writ of error sued out to review a judgment overruling a motion for a new trial in such a case is properly returnable to the Supreme Court.

In the trial of one charged with the offense of murder, the failure of the judge to charge upon the law of voluntary manslaughter will be no reason for reversing the judgment, when the counsel for the accused, in response to a statement by the judge, addressed to him, that he did not think it necessary to charge the law of voluntary manslaughter, replied to the judge in such a manner as to indicate that he concurred in this view.

A party cannot complain of an error which his own conduct induced.

Failure to give instructions upon the subject of impeachment of witnesses, in the absence of a pertinent and proper request is not cause for a new trial.

It has been repeatedly held by this court that it would be better in charging on the effect to be given the statement of the accused, to follow the statute and there leave the matter.

The charges complained of were not erroneous for any reasons assigned. The rulings on the admission of testimony do not present any error so prejudicial in its nature as to authorize a reversal of the judgment.

The evidence, though conflicting, fully supported the verdict and the discretion of the judge in overruling the motion for a new trial will not be interfered with.

Error from Superior Court, Twiggs County; J. H. Martin, Judge.

Gus Caesar was convicted of murder, and brings error. Affirmed.

R. V Hardeman, for plaintiff in error.

E. D. Graham, Sol. Gen., and John C. Hart, Atty. Gen., for the State.

COBB, P.J. (after stating the facts).

1. The first question for determination is whether this case is within the jurisdiction of this court, or whether it should be transferred to the Court of Appeals. The constitutional amendment which made the changes in the jurisdiction of this court and created the Court of Appeals provides that "the Supreme Court shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors in law and equity from the superior courts in all civil cases, whether legal or equitable, originating therein, or carried thereto from the court of ordinary, and in all cases of conviction of a capital felony, and for the determination of questions certified to it by the Court of Appeals." Acts 1906, p. 24. The jury having recommended that the accused be imprisoned for life, instead of being sentenced to death, the question arises whether, after such a verdict, it can be said that there has been a "conviction of a capital felony" within the meaning of the Constitution. If there has been, the case is within the jurisdiction of this court. If there has been no such conviction, the case must be transferred to the Court of Appeals. Lexicographers define "capital" as "affecting the head or life; incurring or involving the forfeiture of life: punishable with death; as treason or murder are capital offenses or crimes; capital trials; capital punishment." Century Dictionary and Webster's International Dictionary. If the statute imposes death as a punishment, and provides for no other punishment, of course, the offense is a capital felony. The question now is, when the statute provides that the punishment shall be death or imprisonment, as the jury shall recommend, and the jury recommends imprisonment, whether the verdict of guilty of the offense is a conviction of a capital offense. In our view, the expression "capital felony," when used in our law, is merely descriptive of those felonies to which the death penalty is affixed as a punishment under given circumstances, to distinguish such felonies from that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same. Felonies, in the Penal Code, are thus divided into two classes--capital felonies, and felonies not capital. If under any circumstances the penalty of death can be inflicted, the offense is capital, whether it is actually inflicted in a particular case or not. If under no circumstances the death penalty can be inflicted, the offense is not capital. If one were asked as to what are the capital felonies under the law of Georgia, the immediate reply would be treason, murder, arson, rape, etc. Still, in all of these cases, capital punishment cannot be inflicted if the jury trying the offender shall recommend imprisonment for life as a punishment.

In Ex parte McCrary, 22 Ala. 65, the Supreme Court of Alabama had before it the question as to what was a capital offense in the meaning of the Penal Code of that state. This was an application for bail before trial, and whether the accused was entitled to bail depended upon whether the offense was capital. There was a provision in the Penal Code of that state authorizing a jury, in a case of murder in the first degree, to fix the punishment either of death or imprisonment for life in the penitentiary. It was held that, on application for bail before trial, the offense was to be treated as a capital offense; it being said that the fact that the jury, in their verdict, might provide for a punishment other than death, did not authorize a holding that murder was not a capital offense. It was said, though, that it might be capital, or it might not be, according as the jury might decide. The question as to what would be the classification of the offense after a verdict in which the jury had determined the punishment should be imprisonment was not involved in that case. In Ex parte Dusenberry, 11 S.W. 217, 97 Mo. 504, the Supreme Court of Missouri reached a conclusion similar to that in the Alabama case. The power of the jury was the same, and the question arose upon an application for bail before trial. In Texas there is a statute that no person under the age of 17 years shall be punished with death. In Walker v. State, 13 S.W. 860, 28 Tex.App. 503, the Court of Appeals of Texas held that a person under the age of 17, who was indicted for murder, was not charged with a capital offense. This case is founded on the reason that under no circumstances could such a person be punished with death upon conviction. These are...