Clifton v. State
| Decision Date | 15 February 1939 |
| Docket Number | 12484. |
| Parties | CLIFTON v. STATE. |
| Court | Georgia Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. On a motion to disqualify an attorney appearing as special prosecutor on behalf of the State, on the ground that he had formerly been of counsel for the defendant, it appeared that shortly after the homicide relatives of the defendant had sought to employ him and the employment was agreed upon save and except the matter of his fee, which he proposed to name after looking into the facts of the case; that thereafter before a fee was named and before any steps were taken in the case another attorney was employed to represent the defendant, after which counsel accepted employment as special prosecutor for the State; that counsel did not at any time consult with the defendant and acquired no information concerning the case from any of the parties or from any investigation made by him as counsel for the defendant. Held that the refusal of the judge to disqualify the attorney does not require the grant of a new trial.
2. A ground of a motion for new trial which is not unqualifiedly approved by the trial judge can not be considered.
3. An assignment of error to the effect that the 'court erred in allowing the introduction of testimony by the State, over the objection of counsel for the movant, to the effect that the deceased died testate, leaving an estate consisting of at least a life-insurance policy, without first having shown to the court and jury that the defendant had knowledge of the fact that his father, the deceased, had died leaving a will, and an insurance policy on his life,' which assignment fails to give the name of the witness giving such testimony, and fails to show clearly what objection was made to its introduction, and whether the reason now assigned in the ground was that urged at the trial, can not be considered.
4. An assignment of error complaining that the defendant was not permitted to cross-examine thoroughly a witness who had testified on behalf of the State, which does not affirmatively show a substantial denial of such right, is not meritorious. Certain remarks alleged to have been made by the judge during the cross-examination of such witness, and to have been prejudicial, can not be considered, since it does not appear that counsel made any objection or motion to declare a mistrial.
5. The fact that certain testimony offered in evidence tended to discredit the character of the defendant made it none the less admissible where otherwise relevant; and where the judge admitted it only for a relevant purpose, and the jury was made so to understand at the time, it is not ground for a new trial, that the judge did not thereafter without request, instruct the jury as to the limited purpose for which this evidence might be considered.
6. The judge did not abuse his discretion in overruling the ground of the motion for new trial based on certain alleged newly discovered evidence.
7. Since it is only required that the coroner 'shall commit to writing the substance of the testimony delivered before the inquest' (Code, § 21-215), this writing is not preferred as 'the best evidence which exists' (§ 38-203) of detailed statements made by the defendant and other witnesses at the inquest, but such statements may be proved by the testimony of a witness who heard and professes to remember the testimony. Green v. State, 124 Ga. 343(1), 52 S.E. 431; Bradberry v. State, 170 Ga. 870(2), 154 S.E. 351; McKinney v. Carmack, 119 Ga. 467, 46 S.E. 719; Brown v. State, 76 Ga. 623(2); Williams v. State, 69 Ga. 11(14); Haines v. State, 109 Ga. 526, 529, 35 S.E. 141; Summerlin v. State, 130 Ga. 791(3), 61 S.E. 849; Smith v. State, 72 Ga. 114; McKenzie v. State, 28 Ga.App. 33, 110 S.E. 248.
8. The court did not err in allowing a witness for the State to testify 'that the drop of blood found on the floor, under or near where a pistol was found, was there before the pistol was placed or thrown there, where it was found after the killing,' for the reason 'that said witness had not qualified as an expert, and was not allowed under the law to give his opinion;' it appearing that the witness fully detailed the facts from which he deduced such statement. Tanner v. State, 163 Ga. 121(7), 135 S.E. 917, and cit.; O'Berry v. State, 153 Ga. 880(2), 113 S.E. 203; Jackson v. State, 148 Ga. 519(2), 97 S.E. 525; Everett v. State, 62 Ga. 65(3); Nunn v. State, 143 Ga. 451, 85 S.E. 346; Ellison v. State, 40 Ga.App. 225(3), 149 S.E. 178.
9. The evidence for the State consisted, among other things, of a full and complete confession of the homicide by the defendant, and proof of the corpus delicti. The general grounds of the motion for new trial are without merit.
O. C. Darsey, of Hinesville, and Frank L. Forester, of Thomasville, for plaintiff in error.
J. P. Dukes, Sol. Gen., of Pembroke, M. J. Yeomans, Atty. Gen., Ellis G. Arnall, Asst. Atty. Gen., and Emil J. Clower, of Atlanta, for defendant in error.
The defendant was indicted for the murder of his father. It appears that the deceased several days before the homicide rented a filling-station and certain tourist cabins known as 'The Pines Camp,' which was located in Liberty County, about one mile and a half from Hinesville, Georgia, on State Highway No. 38. The deceased and the defendant operated the station, and lived together on the premises. On Friday night, July 9, at about 11:15 o'clock, the deceased was found dead, lying face downward on the floor of a cabin back of the filling-station, with a bullet-hole in the back of his head. Near the body was found a pistol containing an exploded cartridge. The defendant was immediately arrested on suspicion of murder and on Wednesday, July 14, he made a full and complete confession of the homicide. The jury found him guilty, with recommendation. He excepted to the overruling of his motion for new trial.
1. Before the introduction of evidence the defendant moved to disqualify an attorney appearing as special prosecutor on behalf of the State, on the ground that he had formerly been of counsel for the defendant. It appears from the evidence on this motion that on July 14, two brothers and an uncle of the defendant called upon counsel to employ him to probate the will of the deceased. During this visit the matter of counsel's representation of the defendant at the trial for the murder of his father was discussed, and his employment in this connection was agreed on, save and except the matter of his fee, which he proposed to fix after looking into the facts of the case. On July 20, one of the brothers wrote to the counsel a letter concerning the matter of probating his father's will and also made further inquiry as to what he would charge to represent the defendant at his trial, stating that it was important for him to know, so that he could take it up with his other brother and settle the matter. On July 22, counsel answered, stating that he had talked to Dr. Randall (the defendant's uncle), and No further communication was had with this counsel. Thereafter, another attorney having been employed to represent the defendant, the attorney first referred to accepted employment to appear as special prosecutor for the State. It affirmatively appears that he did not at any time consult with the defendant, and that he acquired no information concerning the case from any of the parties or from any investigation made by him as counsel for the defendant. His recommendation to the brother that the defendant plead guilty was made after he read in the newspaper that the defendant had confessed. The judge overruled the motion, and exceptions are taken. The question at hand is whether a new trial should be granted, and it is fundamental that a new trial will not be awarded where it appears that the defendant suffered no prejudice from the ruling complained of.
People v. Gerold, 265 Ill. 448, 107 N.E. 165, 177, Ann.Cas.1916A, 636. See generally on this subject, Tucker v. Murphey, 114 Ga. 662, 665, 40 S.E. 836; Conley v. Arnold, 93 Ga. 823, 20 S.E. 762; Willamon v. State, 17 Ga.App. 775, 88 S.E. 702; Johnson v. Morris, 27 Ga.App. 463, 108 S.E. 810; Kennedy v. Redwine, 59 Ga. 327; Weidekind v. Tuolumne County Water Co., 74 Cal. 386, 19 P. 173, 5 Am.St.Rep. 445; Wilson v. State, 16 Ind. 392; State v. Halstead, 73 Iowa 376, 35 N.W. 457; Dodd v. State, 5 Okl.Cr. 513, 115 P. 632; Gesellschaft Fur Drahtlose Tel. M.B.H. v. Brown, 64 App.D.C. 357, 78 F.2d 410; In re Boone, C.C., 83 F. 944; U. S. v. Costen, C.C., 38 F. 24; In re O_____, 73 Wis. 602, 42 N.W. 221; Steeley v. State, 17 Okl.Cr. 252, 187 P. 821; Rakusen v. Ellis, Munday & Clarke (1912) 1 Ch. (Eng.) 831--C.A. An attorney at law is an officer of the court, and, as such, the court has ample authority to regulate and control his conduct in any matter coming before it. See De...
To continue reading
Request your trial