Cochran v. State

• Decision Date: 17 July 1901
• Citation: 39 S.E. 332,113 Ga. 726
• Parties: COCHRAN v. STATE.
• Court: Georgia Supreme Court

39 S.E. 332

113 Ga. 726

COCHRAN v. STATE.

Supreme Court of Georgia

July 17, 1901

Syllabus by the Court.

1. It is not erroneous in the trial of a criminal case for the judge to charge the jury: "Where the state makes out a prima facie case (that is to say, a case where the jury would be authorized to convict if no other evidence was offered) and the defendant offers an alibi as a defense, the burden is on him to make it out by a preponderance of the evidence (that is, by the greater weight of the evidence); but the evidence offered as to alibi is to be considered along with all the other evidence, in order to determine whether the guilt of the defendant has been shown beyond a reasonable doubt."

2. The circumstance that a witness who testifies in behalf of the accused in a criminal case is his relative, or the fact that such witness is jointly indicted with the accused for the offense for which he is on trial, may be considered by the jury in passing upon the credibility of such witness and weighing his testimony, and general instructions to this effect are not erroneous.

3. This court will not interfere with the exercise by the trial judge of his discretion in denying a motion for a continuance, when the facts in connection therewith, as certified by the judge are sufficient to warrant the conclusion that the motion was not made in good faith.

4. Though the trial judge may propound to the accused irrelevant and inappropriate questions, this affords no cause for a new trial, when neither the questions nor the answers thereto were heard by any person who subsequently was selected and served as a juryman upon the trial of the accused.

5. Where the law provides for a term of a superior court to extend beyond one week, and the judge, on any day of the first week, orders that the court take a recess until a named day in the next week, the court may lawfully assemble on that day, and when assembled is in the next week, the court may lawfully session, though there be no order calling a special term, or directing an adjourned term of the court to be held during that week.

6. Though the statute provides that, "when a superior court is held for longer than one week, the presiding judge shall draw separate panels of petit jurors for each week of the court," yet where the judge draws jurors for a term, and they appear and serve during the first week thereof, and subsequently, by direction of the court, appear for service during the first week, and are duly impaneled for such service, and upon the trial of a felony case are put upon the accused as part of the array of 48 jurors from which the trial jury is to be selected, a challenge to the array upon the grounds that these jurors "had been summoned for the previous week, and had not been resummoned for the" week when this trial occurred, did not raise the question that they had not been properly drawn to serve during the second week, and the court committed no error in overuling it.

7. Certain written requests to charge were properly refused because not warranted by the evidence. There was no error in failing to charge that the testimony to corroborate a confession must connect the accused with the perpetration of the crime charged. There was ample corroboration of the confession of the accused, the testimony of the accomplice was sufficiently corroborated by evidence which connected the defendant with the perpetration of the offense charged, the evidence as a whole fully warranted the verdict, and there was no error in refusing a new trial.

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

Shell Cochran was convicted of murder, and brings error. Affirmed.

J. F Golightly, Claude C. Smith, J. B. Suttles, and Arnold & Arnold, for plaintiff in error.

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

FISH J.

Shell Cochran was tried for and convicted of the crime of murder. He made a motion for a new trial, which was overruled, and he excepted.

1. One of the grounds of the motion is that the court erred in giving to the jury the charge set out in the first headnote. It is contended that this charge was contradictory, and that the burden was not upon the defendant to establish his defense of alibi by a preponderance of the evidence. The charge is in substantial accordance with the rule upon the subject which has been established by repeated decisions of this court. In the case of Harrison v. State, 83 Ga. 129, 9 S.E. 542, Chief Justice Bleckley, in formulating from previous decisions the rule upon this subject which had been established in this state, said: "Touching alibi, the rule in Georgia, as established by authority, consists of two branches: The first is that, to overcome proof of guilt strong enough to exclude all reasonable doubt, the onus is on the accused to verify his alleged alibi, not beyond reasonable doubt, but to the reasonable satisfaction of the jury. The second is that nevertheless any evidence whatever of alibi is to be considered on the general case with the rest of the testimony, and, if a reasonable doubt be raised by the evidence as a whole, the doubt must be given in favor of innocence." In Bone v. State, 102 Ga. 387, 30 S.E. 845, it was held: "It is not error in the trial of a criminal case for the presiding judge to charge the jury that when the state makes out a prima facie case against the defendants, 'and the defense of alibi is relied on, then the burden of proof is on the defendants to show you by the preponderance of the evidence offered that at the time and place in question it was impossible for the defendants to have been there,' when immediately after such charge he instructs the jury to consider all the evidence offered, the evidence touching the alibi and all other parts of the case, with reference to determining whether the evidence offered is so strong as to convince them of the defendants' guilt beyond a reasonable doubt." Other decisions of this court to the same effect could be cited.

2. Another ground is that: "The court, in charging upon the rules of weighing evidence, and upon the credibility of witnesses, erred in charging the jury as follows: 'You will consider all the testimony of all the witnesses, taking into consideration the state of a witness' feeling towards any party to the case, his or her relationship to any part to the case, or his or her interest in the result of the case. In other words, consider is he or she interested in the result of the trial, if such is shown by the evidence. All this is to be considered by you in determining the crediti to be given the testimony of every witness. Their manner interest, or bias, if shown, as also the reasonablenes or unreasonableness of the testimony of the witness, may be considered by the jury. The fact that a witness is jointly indicted for the same offense with the defendant, and for which the defendant is on trial, may be considered by you in fixing the credit you will give to the testimony of such witness."' It is alleged that this charge was erroneous, because "it goes too far towards individualizing the witness, and is argumentative, and would naturally be considered by the jury as singling out those witnesses for the defendant who were relatives of the defendant," and "because such charge also went too far in pointing out to the jury to consider whether the witnesses were jointly indicted for the same offense with the defendant, and in compelling the jury to consider this as a circumstance." Three of the witnesses who testified for the defense were jointly indicted with the prisoner on trial,-two of them as principals in the crime charged, and one of them as accessory. Two of these witnesses were his brothers, and other witnesses who testified in his behalf were closely related to him by blood or affinity. These were circumstances which the jury had the right to take into consideration when weighing the testimony of these respective witnesses. Where the testimony in a case conflicts, it is the duty of the jury, if they cannot reconcile it, to determine where the truth lies, and in order to do this they must take into consideration the credibility of the respective witnesses; and in passing upon the credibility of any witness they can consider any circumstance shown by the evidence which would naturally tend to bias or prejudice such witness in favor of the one side or the other. They can consider whether he is himself vitally interested in the result of the trial, whether he will be affected by the verdict rendered therein, or whether the issue on trial is one of vital interest to a near relative of his. Any fact shown by the evidence which, according to human experience and observation, would naturally tend to cause the witness to lean towards one side or the other, may be considered by the jury in passing upon the credibility of a witness' testimony and the weight to be given to his evidence. Certainly, if he testifies in behalf of the accused, who is being tried for the alleged crime of murder, and the evidence shows that he is closely related to the accused, the jury may take this fact into consideration in determining the credibility of such witness and in weighing his testimony; and it is equally clear that if, in such a case, he stands jointly indicted with the prisoner on trial for the same alleged offense, the jury have the right to take this fact into consideration when weighing his testimony. This is so because these are facts which might naturally cause him to be biased or prejudiced in favor of the defense. The fact that some of the circumstances which the court charged could, if shown by the evidence, be taken into consideration by the jury in weighing the testimony of the witnesses, were...