Campbell v. State

• Decision Date: 20 February 1923
• Docket Number: 3028.
• Parties: CAMPBELL v. STATE.
• Court: Georgia Supreme Court

116 S.E. 807

155 Ga. 127

CAMPBELL v. STATE.

No. 3028.

Supreme Court of Georgia

February 20, 1923

Syllabus by the Court.

The trial judge permitted a witness for the state, over appropriate objection of the defendant, to testify to what a witness, since deceased, swore at the inquest held by the coroner over the body of the deceased; the defendant not being present at such inquest and not having had an opportunity to cross-examine such deceased witness at the inquest trial. The evidence of the deceased witness tended to show that the defendant stopped in front of the door of a residence and called for a drink of water. One Pool, who was standing in the door, said to the defendant, "You are no stranger; come in and get it." As the defendant came into the door of the house and passed around near the middle of the floor, he turned and said, "You damned niggers don't believe I'll shoot, but I am going to shoot," and then drew his pistol and shot the deceased as he was getting up, and from which wound he died. This evidence was admitted just before the court took a recess for dinner. After the court reconvened, about two hours later his attention having been called to the fact that the defendant was not present at the inquest trial and had no opportunity to cross-examine the deceased witness who was sworn at the inquest, the court ruled out such evidence, but failed to instruct the jury that they should disregard the same in arriving at a verdict in the case. Held, that the court erred in admitting such evidence; and the error was not cured by afterwards ruling out the evidence when in ruling it out the court failed to distinctly instruct the jury that they should disregard the evidence in reaching a verdict in the case.

Error from Superior Court, Floyd County; Moses Wright, Judge.

James Campbell was convicted of an offense and he brings error. Reversed.

Hines J., and Beck, P.J., dissenting.

Porter & Mebane, of Rome, for plaintiff in error.

E. S Taylor, Sol. Gen., of Summerville, J. F. Kelly, of Rome, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.

PER CURIAM.

Judgment reversed.

All the Justices concur, except BECK, P.J., and HINES, J., dissenting.

HINES, J.

I dissent from the opinion of the majority of the court in this case, and will briefly state my reasons.

1. The general rule is that when the court has admitted illegal evidence which is subsequently ruled out, this subsequent action of the court will cure the error. Conceding that this rule is subject to exceptions, and that, where the illegal evidence may have worked such harm or injury to the accused as to render it probable that the subsequent withdrawal did not heal the injury inflicted by its improper admission, the error would be sufficient ground for the grant of a new trial (McDonald v. State, 72 Ga. 55; Thompson v. State, 12 Ga.App. 201, 76 S.E. 1072), the defendant elected to cure this error by a motion to rule out the illegal evidence. His counsel must have thought that this remedy was sufficient to cure the evil done his client by the illegal admission of the evidence ruled out. Having elected to pursue this remedy, after the evidence had been illegally admitted over timely objection, and after the court had granted all that he asked for, he cannot afterwards complain that his own chosen method of remedying the evil done him was insufficient.

2. Prejudicial remarks made by the court in the presence and hearing of the jury furnish no good ground for a new trial, unless a motion to declare a mistrial is made by the party aggrieved, and is refused. Perdue v. State, 135 Ga. 277, 69 S.E. 184; Moore v. McAfee, 151 Ga. 270, 106 S.E. 274; Barnett v. Strain, 151 Ga. 553, 107 S.E. 530; Kay v. Benson, 152 Ga. 185, 108 S.E. 779; Rogers v. State, 18 Ga.App. 332, 89 S.E. 460; Stapleton v. State, 19 Ga.App. 36 (13), 90 S.E. 1029; Harrison v. State, 20 Ga.App. 157 (6), 92 S.E. 970; Grigg v. State, 22 Ga.App. 637 (2), 96 S.E. 1049; Gilbert v. State, 27 Ga.App. 604 (4), 109 S.E. 697. The reason of this rule is that, when a remark of the court is so harmful and prejudicial to the defendant that the subsequent trial will be vain and nugatory so far as the defendant is concerned, and will furnish ground for the grant of a new trial if he is convicted, the duty rests upon the defendant, at the stage of the trial when the incurable error occurs, to move for a mistrial; and, unless he does so, the harmful and prejudicial remarks of the court will furnish no ground for the grant of a new trial. The defendant cannot take the chances of an acquittal, and thereafter avail himself of the error committed by the court. By a sound deduction, it follows from the above ruling that when illegal evidence is admitted by the court over the objection of the defendant in a criminal case, which evidence is so harmful that its evil effect cannot be cured by its being ruled out by the court, and which will render nugatory any verdict of guilty which may thereafter be rendered against the defendant, the proper procedure is for the defendant to move for a mistrial, which, if overruled, will entitle him to the grant of a new trial; and after such evidence is admitted, but is afterwards ruled out by the court on motion of defendant, the admission of such evidence will furnish no ground for a new trial, unless a motion to declare a mistrial is made by the defendant and refused by the court. After such illegal evidence is admitted, which is subsequently ruled out by the court on motion of defendant, the defendant cannot take the chances of acquittal, when the trial is rendered vain and nugatory by the admission of such evidence, and then after conviction make the admission of such evidence the ground of a motion for new trial. If the defendant moves to rule out such evidence, which motion is granted by the court, and thereafter he proceeds with the trial, taking the chances of a verdict of acquittal, he will be deemed and held to have waived the error committed by the court in the admission of such harmful and prejudicial evidence. This point was not raised or passed upon in McDonald v. State, 72 Ga. 55, and in Thompson v. State, 12 Ga.App. 201 (4), 76 S.E. 1072.

3. It has never entered my mind to hold, and nothing said above can be construed to hold, that a motion for a new trial is not a remedy for the correction of the admission of illegal testimony. This is expressly provided by statute (Penal Code, § 1086), as provision for the grant of a new trial on account of harmful and prejudicial remarks of the judge is likewise made. Penal Code, § 1089. What I mean to say is that the admission of harmful and prejudicial evidence, the evil of which cannot be cured by being ruled out and by an instruction of the court to the jury to disregard it, can furnish no ground for the grant of a new trial, unless a motion for a mistrial is made by the defendant on account of its evil effect, and is overruled.

I am authorized to say that Presiding Justice BECK concurs in this dissent.

RUSSELL C.J. (specially concurring).

In the dissenting opinion is suggested a new rule of practice in which I cannot concur. In my humble opinion it would place a limitation upon the right to make a motion for a new trial, upon the ground of the improper admission or exclusion of evidence, which is not only novel but wholly unwarranted. Section 1086 of the Penal Code provides:

"The superior court may grant new trials in all cases when any material evidence may be admitted to, or illegally withheld from the jury against the demand of the applicant."

This gives the movant for a new trial the original right to test the validity of the rulings of the trial court upon evidence. The view expressed by the minority in paragraph 2 restricts that right, and hampers it by placing upon it a condition not authorized by any legislative enactment. As the rule now stands in the Code, a litigant who is dissatisfied with a particular ruling of the court as to the introduction of evidence may have it reviewed, if proper objection is made at the proper time during the trial, and if the point is properly presented in the motion for new trial. Under the view of the minority, no ruling of the court touching the admission of testimony,...