Campbell v. State

• Decision Date: 28 June 1950
• Docket Number: No. 33047,No. 2,33047,2
• Citation: Campbell v. State, 81 Ga.App. 834, 60 S.E.2d 169 (Ga. App. 1950)
• Parties: CAMPBELL v. STATE
• Court: Georgia Court of Appeals

Page 169

60 S.E.2d 169

81 Ga.App. 834

CAMPBELL v. STATE.

No. 33047.

Court of Appeals of Georgia, Division No. 2.

June 28, 1950.

Rehearing Denied July 5, 1950.

Syllabus by the Court.

1. It is harmful and prejudicial error to the losing party for the trial court to charge the jury, in a case where the verdict is not demanded as rendered, to consider the time and expense of the trial, since such instructions tend to coerce the jury into returning a verdict on consideration of matters not in issue.

2. The requests to charge set out in certain of the special grounds of the amended motion for a new trial were amply covered by the general charge. Another ground is without merit and the remaining ground was expressly abandoned. The general grounds are not passed upon, since the case is being reversed for another trial.

The plaintiff-in-error, R. P. Campbell, herein referred to as the defendant, was tried in the Superior Court of Rockdale County for the offense of murder. He was convicted of voluntary manslaughter and sentenced to serve not less than 6 nor more than 10 years in the penitentiary. He filed a motion for a new trial on the general grounds which was later amended by adding 6 special grounds numbered 4 to 9 inclusive.

Dempsey Leach, Henry McCalla, Vaughn & Vaughn, Wm. T. Dean, Conyers, R. Beverly Irwin, Young H. Fraser, Atlanta, for plaintiff in error.

Roy Leathers, Sol. Gen., Decatur, for defendant in error.

TOWNSEND, Judge.

1. Special ground 9 of the amended motion for a new trial contends that the trial court erred in giving the jury an additional charge containing a statement as follows: 'The only thing I wish to say to you is to call to your attention and for your consideration in the light of all the evidence and the instructions given you by the court, that you take into consideration the time and expense that is necessary to have a trial like this.' This additional charge to the jury was given by the court after the jury had deliberated for two days and failed to reach a verdict. Having the jury before him on this occasion, a colloquy took place between the court and one of the jurors as follows:

'The Court: 'Gentlemen of the jury, I want to propound a question to you and before I propound that question I want you to distinctly understand that I am not asking for any names; I am not asking how you stand; what your individual thoughts are about this question you have before you, but I only want to ask this question. How do you stand numerically?' Juror: 'You mean how we voted?' Court: 'The division as to numbers, not for what you stand but just as to numbers. How are you divided?' Juror: 'Well, we are deadlocked and no decision arrived at.' Court: 'I say, what are the numbers?' Juror: 'Eleven to one.' Court: 'Well, thank you, sir. Gentlemen of the jury, of course I would not say anything in the world that would indicate that I was trying to coerce you into a verdict. The only thing I wish to say to you is to call to your attention and for your consideration in the light of all the evidence and the instructions given you by the court that you take into consideration the time and the expense that is necessary to have a trial like this. Of course, you are the exclusive judges of the facts in the case and the law, and you take the law as given you in charge and you apply it to the facts; whatever you see fit to do, that is your business, and your exclusive business, and I certainly did not mean to say anthing that would indicate that I was trying to coerce this jury to return a verdict in the case. You return the kind of verdict that you believe would meet with the approval of your enlightened consciences.'' (Italics ours.)

It is error to inject into a case on trial any extraneous matter not in issue and unsupported by evidence, whether done by improper argument of counsel or by improper instructions on the part of the court. In the instant case, while the jury had adequate means for determining the amount of time necessary to try the case, there was no evidence upon which the jury could predicate any conclusion as to the expense of the trial. Had such testimony been offered and timely objection interposed, the rules of evidence require that it be ruled out because such evidence is wholly irrelevant and immaterial. Stone v. State, 118 Ga. 705(7), 45 S.E. 630, 98 Am.St.Rep. 145. It could not possibly have any bearing upon the guilt or innocence of the defendant, which was the issue to be determined in this trial. Instructions to the jury on a subject unsupported by any evidence and wholly irrelevant is error. Culbertson v. Alabama Construction Co., 127 Ga. 599(1), 56 S.E. 765, 9 L.R.A.,N.S., 411, 9 Ann.Cas. 507.

Not all error is reversible, and if the judge uses language in his charge, although erroneous, it is not a ground for a new trial if such error is harmless. Williams v. State, 180 Ga. 595(3), 180 S.E. 101. Had the verdict been demanded as returned by the jury, under the authority of Hussey v. State. 69 Ga. 54(2), it is well settled that the error would be harmless. However, the evidence of the State and of the defendant here, including the defendant's statement, were in sharp conflict and a verdict of acquittal would have been authorized. Such erroneous instruction, therefore, was presumptively prejudicial and harmful. See Wiggins v. State, 14 Ga.App. 314(6), 80 S.E. 724. No particular rule, however, can be laid down with perfect exactitude as to wherein error is harmful or harmless, and every case in this respect, subject to the general rules herein outlined, must be determined on its own facts. See Peavy v. Clemons et al., Admr., 10 Ga.App. 507 et seq. at page 511, 73 S.E. 756.

In Alabama Great Southern Ry. Co. v. Daffron, 136 Ga. 555(1), 71 S.E. 799, Ann.Cas.1912D, 438, it is held as follows: 'The court should not unduly press a jury to agree upon a verdict; and in the use of any remarks designed to impress the desirability of reaching a verdict, he should be careful to refrain from any expression of a coercive nature, or which possibly may mislead them into an erroneous method of reaching a verdict. Upon being informed by the jury of their inability to agree upon the amount of recovery, the judge's instruction that verdicts are mostly compromises, and his illustration of that statement, was prejudicial to the defendant. Its tendency was to suggest that the jurors might arbitrarily compromise, divide, and yield for the mere sake of agreement.'

In Peavy v. Clemons, supra, 10 Ga.App. at page 512, 73 S.E. at page 759, it was held as follows: 'The verdict should be the result which all the jurors have unanimously come to, unaided and unassisted by the slightest intimation or suggestion by the trial judge; and the measure of the trial judge's discretion in asking for information from the jury in order to enable him to determine the likelihood of an agreement and the proper exercise of discretion in the declaration of a mistrial should be limited to the general inquiry: Is there an agreement, or is there likely to be an agreement? Beyond this formal and general communication between the judge and the jury relating to an agreement 'evil cometh."

Both the sentence immediately preceding and the sentence immediately following the erroneous part of the court's charge were devoted by the trial court to assurances that he was in no way attempting to coerce the jury. However, no amount of assurance can delete from the erroneous part of the charge some meaning. It either amounted to a tendency on the part of the trial court to coerce the jury, without evil design, to be sure, notwithstanding his assurances to the contrary, or it amounted to substantive instructions to the jury for their positive and affirmative consideration on an issue which is unauthorized by the evidence, which pertains to no issue in the case, and which has no probative bearing whatever on the guilt or innocence of the defendant on...