Coleman v. State
| Decision Date | 15 May 1914 |
| Docket Number | 347. |
| Parties | COLEMAN ET AL. v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where three persons were jointly indicted for murder, and one of them was first tried separately, and a panel of 48 jurors was put upon him, from which 12 jurors were selected, and the other 36 were excluded from the courtroom and heard none of the evidence; and where, upon the conclusion of this trial the other two persons indicted were placed on trial together and a panel of jurors was put upon them which included the 36 jurors who had not tried the previous case, and who had been excluded from the courtroom, but not those who had tried the previous case, this did not furnish a ground for challenge to the array on the ground that the whole panel put upon the accused was thereby rendered incompetent.
(a) It does not appear that less than a full panel of jurors was put upon the accused, nor was any error assigned on that ground.
(b) If there was any objection to individual members of the panel this furnished ground for challenge to the polls, not to the array.
(c) The sixth amendment to the Constitution of the United States has no relevancy to an occurrence of the character above mentioned, on a trial in a state court.
(d) The method of procedure mentioned involved no violation of the fourteenth amendment to the Constitution of the United States.
Where three persons were jointly indicted for murder, if a prima facie case of conspiracy among them was shown, either by direct or by circumstantial evidence, testimony as to the acts and declarations of one of them, during the pendency of the criminal project and connected therewith, was admissible against the other two, although they were tried separately.
(a) The evidence tending to show a conspiracy among the three persons who were jointly indicted to kill the man who was slain was sufficient to authorize the testimony in regard to the acts and declarations of one of them to which objection was made, and also to authorize a charge submitting ultimately to the jury whether or not there was a conspiracy, and instructing them that if there was none to disregard such evidence. (Atkinson, J., dissents from the ruling announced in the subdivision immediately preceding.)
There was no error in admitting evidence to show that one of the defendants on trial had made conflicting statements as to the manner in which the homicide was committed, some of which did not accord with his statement on the stand.
Charges given at the request or insistence of counsel for the defendant furnished no ground for granting a new trial at his instance.
While section 71 of the Penal Code of 1910, in dealing with the subject of reasonable fears as a ground of defense on a trial for homicide, uses the expression "the fears of a reasonable man," the employment of the expression "as reasonably courageous and self-possessed men," in instructing the jury, does not furnish cause for a new trial.
The verdict was supported by the evidence, and none of the grounds of the motion for a new trial require a reversal.
Error from Superior Court, Wilcox County; W. F. George, Judge.
J. J. Coleman and another were convicted of murder, and bring error. Affirmed.
Jno. R. Cooper, of Macon, Haygood & Cutts, of Fitzgerald, and D. B. Nicholson, of Rochelle, for plaintiffs in error.
Hal Lawson, of Abbeville, J. W. Dennard, of Cordele, J. B. Wall, Sol. Gen., of Fitzgerald, and Warren Grice, Atty. Gen., for the State.
W. A. Coleman, Jim Coleman, and W. H. Stevens were indicted for the murder of Leon Melvin. W. A. Coleman was first tried separately and convicted. Jim Coleman and W. H. Stevens were then placed on trial together. They were found guilty with a recommendation to mercy, They moved for a new trial, which was denied, and they excepted.
1. On the trial of W. A. Coleman a panel of 48 jurors was put upon him, from which were selected the 12 who tried him. The remaining 36 were excluded from the courtroom, and heard none of the evidence. After his conviction, the case against the other two defendants was called, and a panel of jurors was put upon them. It did not include the 12 men who tried the previous case; but it included the 36 men who had not been engaged in that case, and who had been excluded from the courtroom. Presumably a full panel was put upon them, which included the 36 jurors mentioned. At any rate, no objection was made to the number of jurors in the panel. Counsel for the defendants challenged the array on the grounds that the whole panel was incompetent. The challenge to the array was properly overruled. If there was any objection to individual members of the panel, this would be a ground for challenge to the polls, not to the array. But we do not mean to imply that there was any ground of challenge either to the polls or to the array. Schnell v. State, 92 Ga. 459, 17 S.E. 966; Brown v. State, 97 Ga. 215, 22 S.E. 403; Bryan v. State, 124 Ga. 79, 52 S.E. 298, and citations; Robinson v. State, 82 Ga. 535 (4), 545, 9 S.E. 528.
It has been repeatedly ruled that the sixth amendment to the Constitution of the United States has no application to trials in state courts. Brantley v. State, 132 Ga. 573 (b), 579, 64 S.E. 676, 22 L.R.A. (N. S.) 959, 131 Am.St.Rep. 218, 16 Ann.Cas. 1203; Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 10 S.Ct. 424, 33 L.Ed. 801. It is equally well settled that there is no merit in the contention that this proceeding was violative of the fourteenth amendment to the Constitution of the United States. Rawlins v. Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899, 5 Ann.Cas. 783; Brantley v. State, supra, and citations.
2. Objection was made to several parts of the evidence which were only admissible either as tending to show a conspiracy or on the basis of a conspiracy; and error was also assigned on certain charges on the law of conspiracy. It was contended that the evidence was irrelevant, and that there was no sufficient evidence of a conspiracy on which to base its admission or the charges on that subject. After the fact of conspiracy is proved, the declarations of any one one of the conspirators during the pendency of the criminal project and connected therewith are admissible against all. Penal Code 1910, § 1025. While it may generally be the better practice to require a prima facie case of conspiracy first to be made, before admitting evidence of the acts and declarations of one of the alleged conspirators, there is no inflexible rule to that effect. The trial court has some discretion as to the order in which testimony may be introduced; and, if a prima facie case of conspiracy is shown from the whole evidence, the admitting of such testimony is not error. Unless, however, a conspiracy is shown prima facie, such evidence can only operate against the person whose acts and declarations are proved, if he is on trial; or, if he is not on trial, they are not admissible against the defendants being tried, and should be rejected. 8 Cyc. 682. If sufficient prima facie evidence of a conspiracy is introduced to authorize the admitting of evidence of acts and declarations of one of the alleged conspirators, ultimately it is for the jury to determine whether from the whole evidence, a conspiracy has been shown; and, if they find that none has been established, it is then their duty not to consider the acts and declarations of the supposed co-conspirator which has been admitted, except so far as they may affect him, if he is on trial. 3 Enc.Ev. 428. As to the admissibility of the evidence, if a prima facie case of...
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