Chance v. State

• Decision Date: 24 September 1923
• Docket Number: 3469.
• Citation: Chance v. State, 156 Ga. 428, 119 S.E. 303 (Ga. 1923)
• Parties: CHANCE v. STATE.
• Court: Georgia Supreme Court

119 S.E. 303

156 Ga. 428

CHANCE v. STATE.

No. 3469.

Supreme Court of Georgia

September 24, 1923

Syllabus by the Court.

Every person charged with an offense against the laws of this state shall be confronted with the witnesses testifying against him, and such person also has the right to be present at every stage of his trial. Where, on the trial of one charged with murder, counsel for the state offered in evidence a certain automobile, and at the request of such counsel the court allowed the jury trying the case to leave their seats in the jury box, accompanied by the presiding judge, and go across the street from the courthouse, where the automobile was parked, in order that the jury might view the automobile as evidence in the case, and where, during the time the jury was absent from the courthouse to view the automobile, the accused was left, and remained in the courthouse entirely out of sight and hearing of the jury and presiding judge, and where, during the absence of the court and jury inspecting the automobile, the defendant was in the custody of the law and made no waiver of his right to be present during this stage of his trial, and did not authorize his counsel to make such waiver for him, and his counsel did not make such waiver, this action on the part of the court was error requiring a new trial.

On the trial of one charged with murder, it is not error for the court to instruct the jury that "the law presumes every homicide to be malicious, until the contrary appears from circumstances of alleviation, excuse, or justification; and it is incumbent on the prisoner to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him." Fitzpatrick v. State, 149 Ga. 75, 80 (3), 99 S.E 128; Delk v. State, 135 Ga. 312, 69 S.E. 541 Ann.Cas. 1912A, 105; Mann v. State, 124 Ga. 760, 53 S.E. 324, 4 L.R.A. (N. S.) 934.

Under the facts of this case it was not error for the court to charge the jury that "the defendant, on the other hand, contends that there was no conspiracy, that he did not act in concert, or with a common intent with the other defendants, or with the common purpose of the other defendants, to take the life of the deceased, and that he did not participate in any manner in the taking of the life of the deceased," as against the objection that this portion of the charge is an intimation by the court to the jury that there was a conspiracy among the other defendants to take the life of the deceased.

(a) A conspiracy may be shown by circumstantial evidence, as well as direct testimony. Turner v. State, 138 Ga. 811 (2), 76 S.E. 349; Lynn v. State, 140 Ga. 387 (7a), 394, 79 S.E. 29; Dixon v. State, 116 Ga. 186, 42 S.E. 357; McElroy v. State, 125 Ga. 37 (2), 39, 53 S.E. 759; Weaver v. State, 135 Ga. 317, 69 S.E. 488; Young v. State, 151 Ga. 401, 107 S.E. 37.

Under the facts of this case it was not error to charge: "As I charged you awhile ago, the deceased would not have the right to fire upon the defendants, if they were merely passing his place peaceably and quietly, and they would not have the right to fire upon him because of the fact that he may have desired to close that road. Neither would have had the right to have made an assault upon the other on account of that; but the testimony was admissible, and is to be considered by you, as to that, for the purpose of showing motive and intent on the part of all the parties concerned." The above charge is not erroneous for the reason assigned, that it is an intimation by the court to the jury that the deceased had the right to fire on the defendant if they passed his place in any other manner except peaceably and quietly.

Certain kodak pictures and diagrams of the home and premises of the deceased, taken and drawn by witnesses sworn for the state, were not inadmissible on the ground that they "were made by some one not at the scene at the time of the killing, nor were the things photographed pointed out by anybody connected with the shooting, or present at the time, or giving any information or knowledge about it;" nor were they inadmissible because they were irrelevant.

The state was permitted, over objection that the evidence was irrelevant and immaterial, to prove by the widow of the decedent that one of her children, a girl, was five years old, another 4 years old, and a boy about 2 years old. This evidence was irrelevant, as contended by the movant; but the error in admitting it was not of such materiality as to require the grant of a new trial.

Other assignments of error do not require a reversal.

Error from Superior Court, Bulloch County; H. B. Strange, Judge.

R. H. Chance was convicted of murder, and he brings error. Reversed.

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

E. K. Overstreet, of Sylvania, Anderson & Jones, of Statesboro, and G. C. Dekle, Willie Woodrum, and E. G. Weathers, all of Millen, for plaintiff in error.

A. S. Anderson, Sol. Gen., and Jas. A. Dixon, both of Millen, R. Lee Moore, of Statesboro, H. A. Boykin, of Sylvania, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.

HILL J.

R. H. Chance was indicted for the murder of Watson Allen, and the jury returned a verdict of guilty, with a recommendation to the mercy of the court. The defendant filed his motion for a new trial, which was overruled, and he excepted.

1. The tenth ground of the motion for new trial is as follows:

"Counsel for the state offered in evidence a Ford automobile, which belonged to the defendant on trial, and in which said defendant was riding along the road leading by the home of the deceased on the morning of the shooting, and at the request of counsel for the state the court allowed the jury trying said case to leave their seats in the jury box, located on the second floor of the courthouse, and proceed, accompanied by the judge presiding in said case, out of the courthouse, and across the courthouse yard, and across the street adjacent to said yard, to where said Ford automobile was parked, in order that said jury might view, as evidence in said case, said automobile, and during the time the jury was gone from the courthouse to view said automobile the defendant on trial was left, and remained, on the second floor of the courthouse, entirely out of sight and hearing of the jury and the presiding judge in said case. At the time the jury and the presiding judge were out of the courthouse and on the street, viewing said automobile, the defendant was in the custody of the law, and made no waiver of his right to be present during this stage of his trial, and that he did not authorize his counsel to make such waiver for him, and that his counsel made no such waiver in his presence, and if an unauthorized waiver has been made by his counsel he has not since ratified the same, or allowed the court to act upon a waiver of counsel, if there was such waiver, since he has notice that the same was made, and that this defendant did not consent or agree for the jury to leave the courthouse and in his absence view said automobile as evidence in said case. This was error, because the defendant was deprived of his legal right to be present at every stage and proceeding of his trial, as guaranteed to him under the laws and Constitution of the state of Georgia."

This ground of the motion is supported by a number of affidavits. In approving the grounds of the motion for new trial, the presiding judge appended the following note: "Ground No. 10 of the amended motion for new trial is approved, subject to the following notations by the court: First. Counsel for the state offered the automobile in evidence, counsel for the defendant consented, and the court announced that the jury, the court, and attorneys and parties would go and look at the automobile. Second. The court intended for the defendant, R. H. Chance, to accompany the jury and the court and his attorneys to where the car was, and the court thought that the defendant had accompanied the jury, and had no notice that he remained in the courthouse until the motion for new trial was presented in this case. Third. Neither the defendant nor his attorneys ever called the court's attention or made any complaint that the defendant was not allowed to accompany the court and the jury to view the automobile. It was the intention of the court that the defendant should accompany the court and jury along with his attorneys, and if he remained in the courtroom he did it without authority from the court or any one authorized by the court, and, so far as the court is concerned, his remaining in the courtroom while the jury went out to view the car was entirely voluntary on his part."

The Constitution of this state provides that every person charged with an offense against the laws of this state shall be confronted with the witnesses testifying against him. Article 1, § 1, par. 5 (Civil Code 1910, § 6361). In Wade v. State, 12 Ga. 25, this court held:

"It is error for the court, on the trial of a criminal cause, after the jury have retired to their room to consider of their verdict, to call them back in the courtroom, and read over to them the evidence taken down by the court, without the consent of the prisoner's counsel, and in the absence of the prisoner."

In the opinion it was said:

"This was clearly error. The court has no more authority under the law to read over testimony to the jury, affecting the life or liberty of the defendant, in his absence, than it has to examine the witnesses in relation thereto, in his absence."

In Wilson v. State, 87 Ga. 583, 13 S.E. 566, this court held:

"On a trial for murder, it is the right of the accused to be present at all stages of the proceeding, and it is the duty of the court to see that he is

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