Chance v. State

• Decision Date: 16 January 1924
• Docket Number: (No. 15022.)
• Parties: CHANCE. v. STATE.
• Court: Georgia Court of Appeals

31 Ga.App. 543

121 S.E. 139

CHANCE.

v.STATE.

(No. 15022.)

Court of Appeals of Georgia, Division No. 1.

Jan. 16, 1924.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; John D. Humphries, Judge.

C. W. Chance was convicted of an offense, and he brings error. Affirmed.

H. A. Allen, of Atlanta, for plaintiff in error.

John A. Boykln, Sol. Gen., E. A. Stephens, and Ralph H. Pharr, all of Atlanta, for the State.

BLOODWORTH, J. [1] 1. The first special ground of the motion for a new trial alleges that—

The "defendant during his statement used the following language: 'Gentlemen, I have been tried once before on this very same charge, not in the courts of Fulton county, but by three hundred and forty something men of the city, in the Masonic room.' The trial court.at this point interrupted the statement of the defendant by making the following statement to the defendant: 'You needn't refer to anything that happened in the lodge. That is immaterial to the case. You must leave that out.' Movant contends and alleges that this interruption by the trial court of defendant's statement was contrary to the rule of law which allows each and every person who comes on trial under a criminal charge the privilege of making to the court and jury such statement in the case as he may deem proper in his defense."

We cannot agree with counsel for the plaintiff in error that this interruption by the court was reversible error. A case containing a point quite similar to the one now under consideration is that of Vincent v. State, 153 Ga. 278, 112 S. E. 120. In the opinion in that case Justice Hines said:

"In the tenth ground of this amendment it is urged that the court erred in interrupting the defendant while making his statement, under the circumstances which will now be stated. After the defendant had stated, 'We tried this case once before, tried it last August. We had twelve men on the jury like we have this afternoon, ' the court interrupted him and said, 'Don't go into what occurred last August; that is no part of this case.' The defendant then whispered to the judge that he was going to state that the jury (on the previous trial) stood eleven to one for his acquittal. The court then stated that he could not make that statement. It is insisted that this ruling deprived the defendant of his right to make such statement as he deemed proper in his own defense, and that he had a right to do this without being restricted or governed by the rules controlling the admissibility of evidence. The prisoner has 'the right to make to the court and jury such, statement as he may deem proper in his defense.' Penal Code, § 1036. The court may so far control his statement as to prevent long, rambling, and irrelevant matter. Yet as to all matters connected with the case he may make such statement as he thinks proper, and should not be restricted to stating such facts as would be admissible in evidence. Coxwell v. State, 66 Ga. 309 (5); Hackney v. State, 101 Ga. 512, 519, 28 S. E. 1007; Richardson v. State, 3 Ga App. 313, 59 S. E. 916. While considerable latitude has been allowed the defendant in making his statement, he has never been allowed to state matters wholly irrelevant, or such as would be violative of every rule of evidence. Montross v. State, 72 Ga. 201 (4a), 266, 53 Am. R. 840; Howard v. State, 73 Ga. 83 (2). The judge may interrupt the defendant when he makes irrelevant statements, and instruct him to confine his statement to the case. King v. State, 9 Ga. App. 609, 71 S. E. 943. While the presiding judge, in the exercise of a sound discretion, can require the accused to omit from his statement reference to entirely irrelevant matters, it is not contemplated by our law that he should be embarrassed and circumscribed by the rules which control the admissibility of evidence. Hackney v. State, supra; Tiget v. State, 110 Ga. 244, 34 S. E. 1023. How the jury stood on the former trial of this case was wholly irrelevant to the present trial. It could throw no light whatever on the issue being tried."

In King v. State, 9 Ga. App. 609, 71 S. E. 943, this court held:

"In the exercise of his statutory right, the accused is authorized to make any statement to the jury in his defense that he may deem necessary, and, so long as he confines himself to the transaction under investigation, this right cannot be restricted by the trial judge. This does not mean, however, that the accused can occupy the time of the court in making wholly irrelevant statements, entirely inapplicable to the case; and the judge, in his discretion, can interrupt him when he is doing so, and instruct him to confine his statement to the case. Coxwell v. State, 66 Ga. 309."

See Nero v. State, 126 Ga. 555, 55 S. E. 404. Under the ruling in the foregoing cases the court did not err in...