Carroll v. State

• Decision Date: 17 November 1948
• Docket Number: 16398.
• Citation: 50 S.E.2d 330,204 Ga. 510
• Parties: CARROLL v. STATE.
• Court: Georgia Supreme Court

50 S.E.2d 330

204 Ga. 510

CARROLL v. STATE.

No. 16398.

Supreme Court of Georgia

November 17, 1948

Syllabus by the Court.

1. The evidence was sufficient to authorize a verdict.

2. Where, in a criminal case, the defense of insanity at the time of the commission of the act is interposed, it is proper for the court to charge that the burden is upon the accused to establish his insanity to the reasonable satisfaction of the jury.

3. The part of the charge upon delusional insanity wherein the court used the expression, 'connected with the criminal act,' when considered with the charge as a whole, was not an expression of opinion that the homicide was a criminal act.

4. Neither of the other grounds of amended motion requires the grant of a new trial.

Jessie C. Carroll was tried for killing his wife, and found guilty of murder without a recommendation to mercy, and to the overruling of his amended motion for new trial he brings the case here upon writ of error.

The evidence showed: About a week before the homicide at their home in Phenix City, Alabama, he made an assault upon his wife with an ice pick, and following the assault their daughter took her mother and children to the daughter's home in Columbus, Georgia, where she was at the time of the homicide. On the morning of the homicide, and about two hours prior thereto, the accused purchased a pistol. He went to the home of his daughter where his wife was staying. When he arrived his wife was bathing her baby. He asked her, 'What about the children?' She said, 'The children are all right.' He said, 'Are you going to look after the children?' She said, 'Yes, I am going to see after them; I want you to leave us alone.' He said, 'Are you going to live with me any more?' She said, 'No, I have tried you too many times, and I wish you would go on and leave me alone.' He said, 'Damn you, you won't live with anybody else, so take this.' He then shot her and subsequently shot her several more times in her attempt to avoid him.

Under the plea of not guilty, the sole defense interposed by the accused was insanity. Both expert and nonexpert testimony of insanity was presented. The State also produced testimony that the accused was sane.

Lennie F. Davis and Omar Hays, both of Columbus, for plaintiff in error.

Ed Wohlwender, Jr., Sol. Gen., of Columbus, Eugene Cook, Atty Gen., and Royal A. McGraw, of Atlanta, for defendant in error.

ATKINSON Presiding Justice (after stating the foregoing facts.)

1. Upon the question of sanity or insanity, which was the sole defense interposed by the accused, there being evidence from which the jury could find either for or against the accused on this issue, the trial judge did not err in overruling the motion for new trial upon the general grounds.

2. Error is alleged on the following portion of the charge 'Where the issue of insanity is involved, the burden is on the defendant to show to the reasonable satisfaction of the jury that at the time of the alleged commission of the act charged against him he was insane, or was laboring under a delusion that deprived him of his will and deprived him of the power to resist.

Whether or not that has been done either by evidence from the State or established by evidence from the defendant, or both, is a question to be determined by you, the jury.' It is insisted that the burden placed upon the accused to establish his insanity 'to the reasonable satisfaction of the jury' set a higher degree of proof and placed a greater burden on him than the law required. It is insisted that the court should have charged that the burden to prove insanity could be established by 'a preponderance of the evidence.'

There is some confusion in the previous decisions of this court as to the proper charge of the court to fix the burden of proof upon a defendant in a criminal case to establish insanity. The trouble has been in determining which of the following phrases defines the proper measure of proof: 'To a reasonable certainty.' Beck v. State, 76 Ga. 452(7); Polk v. State, 148 Ga. 34(5), 95 S.E. 988; Bowden v. State, 151 Ga. 336(3), 106 S.E. 575; Thompson v. State, 191 Ga. 222(4), 11 S.E.2d 795. 'By a preponderance of testimony.' Carter v. State, 56 Ga. 463(8); Danforth v. State, 75 Ga. 614(4), 58 Am.Rep. 480; Carr v. State, 96 Ga. 284(5), 22 S.E. 570; Keener v. State, 97 Ga. 388(4), 24 S.E. 28; Ryder v. State, 100 Ga. 528(5), 28 S.E. 246, 38 L.R.A. 721, 62 Am.St.Rep. 334; Rozier v. State, 185 Ga. 317, 319(1), 195 S.E. 172. 'To the reasonable satisfaction of the jury.' Lively v. State, 178 Ga. 693, 699(9), 173 S.E. 836, 840; Hobbs v. State, 8 Ga.App. 53(4), 68 S.E. 515. 'To a reasonable certainty, to your reasonable satisfaction.' Westmoreland v. State, 45 Ga. 225, 280(5). 'Reasonable certainty, by a preponderance of the testimony'. Minder v. State, 113 Ga. 772(3), 39 S.E. 284, 285. 'Reasonable satisfaction * * * by a preponderance of the evidence'. Allams v. State, 123 Ga. 500(1), 51 S.E. 506; Barker v. State, 188 Ga. 332, 335(2), 4 S.E.2d 31. 'Reasonable certainty and to the reasonable satisfaction of the jury.' Currie v. State, 153 Ga. 178(2), 111 S.E. 727, 728. It would serve no useful purpose to try to reconcile or distinguish the various expressions of the court upon the foregoing phrases; or to seek to analyze and compare these various phrases and list them in a respective order as to the degree of proof required by the terms of these expressions.

We shall confine our ruling to the sole question here presented, whether the court erred in charging the jury that the burden was on the defendant to establish his insanity to the reasonable satisfaction of the jury. To establish error in so charging the accused relies upon Polk v. State, 148 Ga. 34, supra, 95 S.E. 988, wherein the following charge as to the degree of proof required was stated to be erroneous, 'The burden is on him to make it [his insanity] appear to the satisfaction of the jury, it ought to be made to appear to a reasonable certainty.' While the court in that case said that this charge was erroneous, yet it also stated that the charge was not cause for reversal on account of other portions of the charge containing the law of reasonable doubt. It will be noted also that the charge contained two standards, 'satisfaction of the jury' and 'reasonable certainty.' This was not a full-bench decision. Subsequently in Currie v. State, 153 Ga. 178(2), supra, 111 S.E. 727, it was held that the charge, 'reasonable certainty and to the reasonable satisfaction of the jury', was cause for reversal, basing the decision on the Polk case, but two of the Justices dissented.

We have been unable to find any case in which the court has held that it was error to charge that it was the duty of the defendant to establish insanity to the reasonable satisfaction of the jury, but on the other hand, this identical phrase has been directly passed on and approved in Hobbs v. State, 8 Ga.App. 53(4), supra, 68 S.E. 515; and, though not specifically ruled upon, was referred to without disapproval in Westmoreland v. State, 45 Ga. 225, 280 (5); Allams v. State, 123 Ga. 500(1), 51 S.E. 506; Lively v. State, 178 Ga. 693, 699(9), 173 S.E. 836; Barker v. State, 188 Ga. 332, 335(2), 4 S.E.2d 31; Thompson v. State, 191 Ga. 222(4), 11 S.E.2d 795; all supra.

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