Caswell v. State

• Decision Date: 12 May 1921
• Docket Number: (No. 12290.)
• Citation: 27 Ga.App. 76,107 S.E. 560
• Parties: CASWELL v. STATE.
• Court: Georgia Court of Appeals

27 Ga.App. 76

107 S.E. 560

CASWELL

v.STATE.

(No. 12290.)

Court of Appeals of Georgia, Division No. 1.

May 12, 1921.

(Syllabus by Editorial Staff.)

Luke, J., dissenting in part.

Error from Superior Court, Jasper County; J. B. Park, Judge.

Jim Caswell was convicted of an offense, and he brings error. Affirmed.

Davidson, Callaway & De Jarnette, of Eatonton, and E. M. Baynes, of Monticello, for plaintiff in error.

Doyle Campbell, Sol. Gen., A. Y. Clement, and Greene F. Johnson, all of Monticello, for the State.

BROYLES, C. J. [1] 1. One who is closely related to persons who assist the solicitor general in striking a jury in a criminal case is not incompetent for that reason, to sit as a juror in that case. Atkinson v. State, 112 Ga. 411, 37 S. E. 747; Griffin v. State, 18 Ga. App. 402 (4), 404, 89 S. E. 625; Williams v. State, 23 Ga. App. 518 (1), 98 S. E. 557. [2] 2. The mere fact that a person is over 60 years of age does not disqualify him from acting as a juror in a criminal case. Staten v. State, 141 Ga. 82, 80 S. E. 850.

3. It was not error to deny a motion for a mistrial in a criminal case upon the ground that the defendant had not been arraigned, and had not waived arraignment, which motion was made after the jury had been struck and sworn, but before any testimony had been delivered or any witnesses sworn, or the defendant been called upon to plead, where he sat silently by and allowed the jury to be struck and sworn before he called the court's attention to the fact that he had not been formally arraigned.

"A person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest." 1 Park's Ann. Code, § 10.

It seems to us as suggested by Judge Harris, in Bryans v. State, 34 Ga. 325, that—

"The accused was entirely estopped from objecting that there was no arraignment and plea or issue in the case, as he had proceeded to select his jury, and allowed them to be sworn, 'to try the issue formed on this bill of indictment between the state of Georgia and himself, charged, ' etc. His silence and conduct in the presence of the court, entirely cognizant of the omission, and not objecting to proceeding, authorized the court to presume an issue; he should not, after what had transpired, be permitted to deny that there was no issue."

See, also, Reddick v. State, 149 Ga. 822, 102 S. E. 347.

4. Grounds 4 and 5 of the amendment to the motion for a new trial, alleging error in admitting over the defendant's objections certain oral testimony, cannot be considered, as neither ground gives the name of the witness whose testimony was objected to. Hunter v. State, 148 Ga. 566 (1), 97 S. E. 523; Adams v. State, 22 Ga. App. 252, 95 S. E. 877, and citations.

5. The fifth ground of the amendment to the motion for a new trial complains of the admission, over the defendant's objections, of the following testimony of R. P. Ezell:

"I thought Mr. Jim Caswell had passed on by, and my daughter said, 'Papa, he is in the yard, and don't go out there; he will kill you.' "

This ground is in two particulars too defective to be considered. In the first place, all of the testimony was objected to, and, while what the daughter said may have been hearsay and inadmissible, the first part, to wit, "I thought Mr. Jim Caswell had passed on by, " was not subject to that objection, which was the only objection made as to the admissibility of the evidence. In the second place, it would require an examination ofthe brief of the evidence to determine the materiality of this testimony. Hunter v. State, 148 Ga. 566 (2), 97 S. E. 523; Caesar v. State, 22 Ga. App. 796, 97 S. E. 255, and citations.

6. Ground 7 of the amendment to the motion for a new trial complains that the court erred in admitting, over the defendant's objections, certain testimony about a previous difficulty between other parties, in which the defendant had no part. This ground is without merit, as it appears, from a note of the trial judge and an exhibit attached to the ground, that counsel for the defendant first drew out from witnesses the fact that the other parties referred to had had a difficulty, and the state had a right to show under what circumstances the difficulty occurred. If the state had not been allowed to do so, under the facts of the case, the evidence elicited by the defense would have been unfairly prejudicial to the state's cause.

7. Ground 8 complains that the court erred in refusing to give a certain charge requested in writing. This ground, however, is...