Cawthon v. State

Decision Date12 February 1904
Citation119 Ga. 395,46 S.E. 897
PartiesCAWTHON. v. STATE.
CourtGeorgia Supreme Court

CRIMINAL LAW—NEW TRIAL—DIRECT BILL OP EXCEPTIONS — BRIEF OF EVIDENCE — OTHER CRIMES—OBJECTIONS TO EVIDENCE—TRIAL— RECEPTION OF VERDICT—PRESENCE OF ACCUSED.

1. Prior to 1898 any criminal case might be carried to the Supreme Court on a direct bill of exceptions specifying the errors of law complained of, without making a motion for a new trial.

2. Act Dec. 20, 1898 (Acts 1898, p. 92; Van Epps' Code Supp. § 6241), authorizing the Supreme Court to consider assignments of error in a direct bill of exceptions, where no motion for a new trial is made, is simply declaratory of the law as it existed at the date of the passage of the act, and is not exhaustive of the right of this court to entertain jurisdiction of direct writs of error.

3. This court cannot consider as a brief of evidence a document appearing as such in a record or bill of exceptions, unless the record or bill of exceptions affirmatively shows that the document has been approved as correct by the trial judge; and this is true, even in a case where counsel agree in the Supreme Court that the document is a correct brief of the evidence and may be considered as such.

4. Evidence of the commission of a crime oth-er than the one charged is generally not admissible.

5. "To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor, by a connection which shows that he who committed the one must have done the other."

¶5. See Criminal Law, vol. 14, Cent Dig. §§ 823, 824

6. "If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt."

7. Where the court, over objection, admits certain evidence, with the statement that the objection will be passed upon at a later stage of the trial, it is incumbent upon the objecting party, if the evidence be inadmissible, to direct the court's attention thereto, either before or at the close of the testimony, and to move to exclude it; and upon his failure to do this he will be held to have waived his objection.

8. Even if an attorney, by virtue of the relation of attorney and client existing between himself and one charged with a felony, has no implied authority to waive the right of his client to be present at the reception of the verdict, if the attorney makes an express waiver to this effect in the presence of the client, who does not at the time repudiate the action of his counsel, a verdict afterwards received, in the absence of the accused and in consequence of the waiver, will not be held to be invalid at the instance of the accused, seeking, after the reception of the verdict, to repudiate the action of his counsel in making the waiver.

9. Before a verdict received in the absence of the accused will be held to be invalid, it is incumbent upon the accused to show that he was in custody of the law at the time the waiver was made, that he made no waiver of his right to be present, and that he did not authorize his counsel to make such waiver for him, and, if an unauthorized waiver has been made by counsel, that he has not ratified the same, or allowed the court to act upon the waiver of counsel after he has notice that the same has been made.

(Syllabus by the Court.)

10. This case having been brought to the Supreme Court by a direct bill of exceptions, no motion for a new trial having been made, and it appearing, in my opinion, that no ruling or order of the trial judge upon which error was assigned necessarily controlled the verdict rendered, it follows that, under the act of 1898 (Van Epps' Code Supp. § 6241) and the former adjudications of this court, such rulings and orders cannot be reviewed. Taylor v. Reese, 108 Ga. 379, 33 S. E. 917; Smith v. Smith, 112 Ga. 351, 37 S. E. 407; Wright v. Hollywood Cemetery Co., 112 Ga. 884, 38 S. E. 94, 52 L. R. A. 621 (6); Ocean Steamship Co. v. Hamilton, 112 Ga. 901, 38 S. E. 204; Ray v. Morgan. 112 Ga. 923, 38 S. E. 335; Darien Bank v. Clarke Lumber Co., 112 Ga. 951, 38 S. E. 363; Parker v. Medlock, 117 Ga. 813. 45 S. E. 61; Binion v. Georgia Southern & Fla. Ry. Co., 118 Ga. 282, 45 S. E. 276; Cable Co. v. Parantha, 118 Ga. 913, 45 S. E. 787.

Per Fish, P. J., dissenting.

11. Since the passage of the act approved December 20, 1898 (Acts 1898, p. 92). "to dispense with a motion for new trial and filing brief of the evidence, and to authorize a direct bill of exceptions, in certain cases, " to authorize the reversal of a judgment on a bill of exceptions sued out directly to this court, without any mo tion for a new trial having first been filed in the court below, it must appear that "the judgment, decree, or verdict has necessarily been controlled by one or more rulings, orders, decisions, or charges of the court, " complained of in the bill of exceptions. The present case, in my opinion, does not come within this requirement of the law.

12. Error will never be presumed, but must be clearly shown. Hence, where there is before this court no brief of evidence which it is authorized to consider, the judgment of the court below should not be reversed because the judge admitted evidence of an alleged independent crime; there being nothing before this court to show whether the transaction as to which the evidence objected to was admitted was or was not connected with the crime of which the accused was charged.

13. On the trial of one indicted for murder, evidence of a former attempt by the accused to kill the deceased is admissible, even though it should incidentally develop that in such unsuccessful attempt another person, with whose murder the accused was not charged, was killed.

Per Candler, J., dissenting.

Error from Superior Court, Dodge County; D. M. Roberts, Judge.

R. D. Cawthon was convicted of murder, and brings error. Reversed.

Chas. W. Griffin and Goodwin, Anderson & Hallman, for plaintiff in error. J. F. De Lacy, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

COBB, J. Cawthon was convicted of murder, and sentenced to death. He made no motion for a new trial, but brings his case by a direct writ of error, alleging that certain errors prejudicial to him were committed at the trial.

1, 2. The Attorney General suggests in his brief that this court has no jurisdiction to pass upon any question made in the bill of exceptions, for the reason that the verdict was not necessarily controlled by any of the rulings, decisions, or charges complained of, within the meaning of the act of December 20, 1898. See Acts 1898, p. 92; Van Epps' Code Supp. § 6241. In order to determine the true interpretation to be placed upon the act of 1898, it is necessary to consider the practice as it existed in this court at the date of and prior to the passage of that act. The act establishing this court declared that "any criminal cause may be carried up to the Supreme Court on a bill of exceptions, in writing, specifying the error or errors of law complained of, " and that "any cause of a civil nature, either on the law or equity side of the superior court, may, in like manner, be carried to the Supreme Court on a bill of exceptions specifying the error or errors complained of in any decision or judgment." See 1 Ga. vi, vii. The first criminal case brought to this court was Sealy v. State, 1 Ga. 213, 44 Am. Dec. 641, and the second was Reynolds v. State, 1 Ga. 222. Hines Holt and Henry L. Benning represented the plaintiff in error in each case. In the first no motion for a new trial was made, but the case was brought to this court upon abill of exceptions assigning error upon a ruling refusing to continue the case, upon rulings made while the jury was being impaneled, and upon rulings made on the admission and rejection of evidence. The court entertained jurisdiction of the writ of error, and reversed the judgment. In Reynolds v. State the bill of exceptions assigned error upon various rulings at the trial, upon the overruling of a motion to arrest the judgment, and upon the overruling of a motion for a new trial. The court entertained jurisdiction of this writ of error, and awarded a new trial. While no question was made in either case, or directly passed upon by the court, as to what was the proper practice to be pursued, or what was the proper construction of the act organizing the court, the practice followed by lawyers of the standing of those who represented the plaintiffs in error, and acquiesced in by such lawyers as Levi B. Smith, E. H. Worrill, and Absalom H. Chappell, who represented the state in the respective cases, is entitled to very grave consideration, when it is to be determined what was the opinion of the profession at that time as to the practice to be pursued in bringing cases to this court An examination of the records of this court in the earlier volumes will show that the practice above indicated was followed generally by the profession throughout the state; that is, the losing party determined for himself whether he would bring an error of law to this court by direct bill of exceptions, or embody it in a motion for a new trial, if the ruling was of such a character as could be properly made the ground of such a motion. That part of the act of 1845 (Laws 1845, p. 18) establishing the Supreme Court which declared what causes should be brought before it was carried into the Code of 18G3 in the following language: "Either party in a civil cause, and the defendant in any criminal proceeding in the superior courts of this state, may except to any sentence, judgment, decision, or decree of such court, or of the judge thereof in any matter heard at chambers. Such bill of exceptions shall specify...

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74 cases
  • Frank v. State
    • United States
    • Georgia Supreme Court
    • February 17, 1914
    ...to show that the defendant had a general bad character. Counsel for the defendant also rely strongly upon the case of Cawthon v. State, 119 Ga. 395, 46 S.E. 897. regard to that decision several remarks may be made. In the first place, it was made by a majority of the court. Presiding Justic......
  • Collier v. State
    • United States
    • Georgia Supreme Court
    • October 21, 2019
    ...matter heard at chambers." A version of this Code section has been a part of Georgia statutory law since at least 1863. See Cawthon v. State , 119 Ga. 395, 403 (1, 2), 46 S.E. 897 (1904) ("Either party in a civil cause, and the defendant in any criminal proceeding in the superior courts of ......
  • Wright v. State
    • United States
    • Georgia Supreme Court
    • March 10, 1937
    ... ... 71] ... offense for which he stands charged, or where it tends to ... show motive, plan, or scheme (Williams v. State, ... 152 Ga. 498, 521, 110 S.E. 286; Frank v. State, 141 ... Ga. 243, 80 S.E. 1016; Merritt v. State, 168 Ga ... 753, 149 S.E. 46; Cawthon v. State, 119 Ga. 395, 46 ... S.E. 897). In Bates v. State, 18 Ga.App. 718, 90 ... S.E. 481, it was held that evidence of other transactions may ... be received, as tending to show motive or intent, when the ... transactions are so connected on time or similar in their ... other relations that ... ...
  • Chance v. State
    • United States
    • Georgia Supreme Court
    • September 24, 1923
    ...discloses. Had he been present, no benefit to him is conceivable, and his absence, therefore, was not to his injury. In Cawthon v. State, 119 Ga. 395, 46 S. E. 897, one ground of the motion for new trial was based on the action of the court in receiving the verdict in the absence of the acc......
  • Request a trial to view additional results
1 books & journal articles
  • Criminal Law - Frank C. Mills, Iii
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 46-1, September 1994
    • Invalid date
    ...for the crime charged; and the requisite specific intent for the crime charged. Id. at 534, 436 S.E.2d at 482 (citing Cawthon v. State, 119 Ga. 395, 46 S.E. 897 (1904); and Kenneth S. Brown et.al., McCormick on Evidence (John W. Strong ed. 4th ed. 1992). In addition to those listed by Justi......

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