Cochran v. State

• Decision Date: 18 July 1901
• Citation: 39 S.E. 337,113 Ga. 736
• Parties: COCHRAN v. STATE.
• Court: Georgia Supreme Court

39 S.E. 337

113 Ga. 736

COCHRAN v. STATE.

Supreme Court of Georgia

July 18, 1901

Syllabus by the Court.

1. A judge of the superior court is not disqualified from presiding at the trial of an indictment merely because previously thereto he held a court of inquiry and bound the prisoner over.

2. Under all the facts appearing, there was no abuse of discretion in refusing to grant a continuance.

3. That the judge, while a panel of 48 jurors was being made up excused jurors who were not disqualified, affords no cause for a new trial, when it appears that the panel, after being completed, was put upon the accused, and there was no challenge to the array, or other objection to the panel, and further, that the peremptory challenges allowed to the accused were not exhausted.

4. Though one accused of crime be jointly indicted with others for the offense of murder, a charge to the effect that if he "alone or with others," unlawfully shot and killed the deceased, with malice aforethought, he would be guilty of the crime, is not cause for a new trial.

5. When testimony is distinctly offered for an explicit purpose, and there is no contention that it should be considered for any other purpose, a new trial will not be granted because the court in its charge restricted the jury to the consideration of such testimony with reference to this purpose alone, although it may have been relevant for other purposes.

6. When a request to charge that confessions should be received with caution is given in the exact language of the request presented, it is not cause for a new trial that the court omitted to use the word "great" between the words "with" and "caution."

7. The fact that the judge in charging the jury referred to them as "honest, experienced, intelligent, upright citizens, selected to try the case," is not cause for a new trial.

8. One on trial for crime is not entitled, as matter of right, to make a second statement to the jury.

9. Allowing leading questions to be asked is a matter purely within the discretion of the trial judge. There was no error in the charges complained of not specifically noted above, there was no material error in admitting evidence, the evidence fully warranted the verdict, and there was no error in denying a new trial.

Error from superior court, Campbell county; J. S. Candler, Judge.

J. A. Cochran was convicted of murder, and brings error. Affirmed.

Arnold & Arnold, J. F. Golightly, C. C. Smith, J. B. Suttles; and R. D. Waits, for plaintiff in error.

W. T. Kimsey, Sol. Gen., C. S. Reid, J. M. Terrell, Atty. Gen., and L. S. Roan, for the State.

LEWIS J.

Eight men, one of whom was the plaintiff in error, were indicted for the murder of Sterling Thompson. The defendants severed, and J. A. Cochran was tried and convicted. He excepts to the overruling of his motion for a new trial, the material grounds of which will be considered as the opinion proceeds.

1. It is contended that the judge who tried the case should have held himself disqualified, although there was no suggestion of disqualification, nor any objection to his presiding. It appears that, after the defendant and several of the others named in the indictment were placed in Fulton county jail Judge Candler, upon application to him for a committing trial, went to Fairburn and held the committal trial; his reason being that he did not wish the jurors who would likely be drawn or summoned to hear the evidence on the committal trial. Before that time the defendants had applied to the judge to have the prisoners returned to Fairburn for a committal trial. They made no objections to his hearing the evidence, but stated that they wished an investigation as to whether they should be bound over. The judge went to Fairburn, heard the evidence, and, the defendants offering no evidence, committed the defendant and others under arrest to jail under the warrant sworn out, charging them with murder. Leaving cut of consideration the fact that at the time of the trial this point was not made, there is no merit in the contention that conducting the preliminary committal trial disqualifies, or ought to disqualify, the judge from presiding at the regular trial of the accused. The only argument advanced to sustain it by counsel for the plaintiff in error is that the news that the superior court judge had presided at the preliminary trial and bound the accused over might lead the public, including prospective jurors, to the conclusion that the judge had made up his mind that the accused was guilty. If we concede, as we must, that the citizens of the county where the case was tried were possessed of a sufficient amount of intelligence to understand the nature of a commitment trial, this argument at once falls to the ground. The accused offered no evidence at the preliminary hearing, and the act of the judge in binding him over was simply equivalent to a judicial determination that the case against the prisoner warranted further investigation by the grand jury. While there is no Georgia case exactly in point as to facts, the principle here involved is fully settled by the ruling of this case of Heflin v. State, 88 Ga. 151, 14 S.E. 112, 30 Am.St.Rep. 147. The first headnote of that case is as follows: "It does not per se disqualify a judge of the superior court to preside on the trial of an indictment for perjury that the same judge presided at the trial of the case in which the alleged per jury was committed, and also of a second case in which one of the witnesses in the first was convicted of perjury. Nor does any disqualification result, as matter of law, from the judge having, by reason of his acquaintance or supposed acquaintance with the facts thus derived, privately and unofficially advised the prisoner's counsel to induce his client to plead guilty, saying that there was no doubt about his guilt, and no earthly chance for him to be acquitted." Certainly a stronger case is there presented than is now before us. We quote the following from the learned opinion of Chief Justice Bleckley on pages 154, 155, 88 Ga., page 116, 14 S.E. , and page 149, 30 Am.St.Rep.: "It can make no difference that the judge had thus become convinced of Heflin's guilt, because the opinion of the presiding judge as to the guilt or innocence of the prisoner, however that opinion may have been formed, does not unfit him for discharging his judicial duties with the most complete fairness and impartiality. These duties are exactly the same whether the accused is guilty or innocent, and upon that question the judge has no deciding power, and is not permitted to...