Corbin v. State

• Decision Date: 05 February 1956
• Docket Number: No. 19172,19172
• Citation: 91 S.E.2d 764,212 Ga. 231
• Court: Georgia Supreme Court
• Parties: John F. CORBIN v. The STATE.

Page 764

91 S.E.2d 764

212 Ga. 231

John F. CORBIN v. The STATE.

No. 19172.

Supreme Court of Georgia.

Feb. 5, 1956.

Rehearing Denied Feb. 29, 1956.

Paul James Maxwell, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Carl B. Copeland, William E. Spence, Eugene L. Tiller, Rubye G. Jackson, Atlanta, Eugene Cook, Atty. Gen., for defendant in error.

Syllabus Opinion by the Court

CANDLER, Justice.

John F. Corbin was indicted in Fulton County on January 22, 1954, jointly with Juanita Bullock and Tommie Couch for the murder of Oscar Roebuck, to which charge he pleaded not guilty. He was convicted of murder on March 19, 1954, without any recommendation and sentenced to be electrocuted. For errors in the court's instructions to the jury, this court reversed his conviction and granted him a new trial. See Corbin v. State, 211 Ga. 400, 86 S.E.2d 221. He was tried anew on June 9, 1955, convicted as before, and again sentenced to death by electrocution. In due time, he filed a motion for new trial on the usual general grounds, and later amended it by adding twelve special grounds. His amended motion was denied and the exception is to that judgment. Held:

1. There is no merit in special ground 1 of the motion for new trial, which alleges that the trial judge erred in denying the defendant's motion for a continuance. A motion to continue is addressed to the sound discretion of the trial judge, and this court will not interfere unless it is clearly shown that he has abused his discretion. Code, § 81-1419; Blackston v. State, 209 Ga. 160(2), 71 S.E.2d 221, and citation. The grounds for continuance here are that counsel had been employed only two weeks and had been handling other cases, that counsel had been unable to find some of the defendant's witnesses, and that some of his witnesses were out of the State, and others had not responded to the subpoenas served on them. This court will not hold that the trial judge abused his discretion in refusing a continuance where counsel had been employed for two weeks and was unprepared because he had been handling other cases. See Burchard v. Boyce, 21 Ga. 6(2). In all applications for continuances upon the ground of the absence of a witness, it must be shown to the court that a named witness is absent; that he has been subpoenaed; that his testimony is material; that such witness is not absent by the permission, directly or indirectly, of such applicant; that he expects to be able to procure the testimony of such witness at the next term of the court; and that such application is not made for the purpose of delay, but to enable the party to procure the testimony of such absent witness: and the facts which the applicant expects to prove by the absent witness must be stated. Code, § 81-1410. The motion for continuance in this case did not comply with these requirements. Hence, no abuse of the court's discretion in refusing to continue the case because of the absence of witnesses is shown.

2. 'Mere failure to have a verdict or verdicts previously rendered in the same case covered up or concealed from the jury will not, in the absence of any request on the subject, be treated as error.' Smalls v. State, 105 Ga. 669(6), 31 S.E. 571, 572. For a like ruling, see Allen v. State, 155 Ga. 332(1), 116 S.E. 534. In special ground 2 of the defendant's motion, it is alleged that the court erred in allowing the indictment to be taken to the jury room with a former verdict convicting him entered upon it. This ground of the motion does not show that the defendant, during his trial, made any request that the former verdict against him be detached, erased, or in some way concealed; however, the trial judge in his order approving this ground of the motion certifies that the former verdict was completely concealed by a cardboard stapled over it before the indictment was sent to the jury room, and that it was still so concealed when the indictment was returned to the courtroom by the jury. This special ground of the motion shows no error and is wholly without merit.

3. In special ground 3, it is alleged that the court erred in failing, without a request therefor, to specifically instruct the jury that the indictment against the defendant was not evidence and should not be considered as such by the jury. This contention is without merit. In his charge to the jury the judge gave the following instructions: 'The indictment together with the defendant's plea of not guilty forms the issue which you gentlemen are to determine.' Also, 'It is necessary for the state to prove every material allegation in this bill of indictment to your satisfaction beyond a reasonable doubt, by the production of evidence, before you would be authorized to convict the defendant.'

4. Special ground 4 alleges that the court erred in giving the following charge: 'Your verdict should be in writing, it should be dated, it should be entered upon the indictment in this case, signed by one of your members as foreman and returned into open court.' The movant contends that this portion of the charge was erroneous, because (1) it was confusing, (2) it was misleading, and (3) it was the duty of the court to supply the jury with a separate piece of paper on which to write its verdict 'with no writings, scribblings, or cover-ups thereon,' so that the jury would not be influenced against him by the entries on the bill of indictment. From the facts recited and the ruling made in division 2 of this opinion, it necessarily follows that this special ground is not meritorious.

5. Special ground 5 alleges that the court erred in failing to charge the jury, without request, substantially as follows: 'Certain statements have been made in your presence by Counsel; and there has been certain testimony read to you as testimony of witnesses in a previous trial of this case. It is proper that the court instruct and caution you that you are not to permit yourselves to be influenced for or against either side of the case, by whether, there was or was not any previous trial or trials or the outcome thereof. It is not proper for you to concern yourselves with any such previous trial or trials.' In view of the full and fair charge given on this trial, there is clearly no merit in this special ground of the motion.

6. Special ground 6 alleges that the court erred in failing to charge, without request, substantially as follows: 'You are to totally disregard the entries upon the bill of indictment showing the plea of guilty by a co-defendant in this case, Tommie Couch, dated May 17, 1954. Likewise, you are to totally disregard the entry on the bill of indictment as to the other co-defendant Juanita Bullock upon which no disposition appears. You are in your deliberation not to be concerned with these writings upon the bill of indictment.' In the absence of a timely written request for such a charge, this special ground shows no error.

7. Special ground 7 alleges that the court erred in refusing to permit the movant's counsel to question him while he was making his statement to the jury concerning a letter the defendant then had in his hand. This ground of the motion shows no error. Under the wording of our statute as construed by our courts, the defendant makes his own statement. Prater v. State, 160 Ga. 138(2), 127 S.E.2d 296. The right to make a statement in his behalf is a personal right granted to the defendant by Code, § 38-415, and extends no further than to permit him personally to make to the court and jury just such statement as he deems proper in his defense. His counsel has no right to ask him questions while he is making his statement. The trial judge, however, in his discretion, can permit his counsel to ask him questions or make suggestions to him relating to his statement, while he is making it or when he has concluded it. Echols v. State, 109 Ga. 508(4), 34 S.E. 1038; Walker v. State, 116 Ga. 537(1), 42 S.E. 787, 67 A.L.R. 426; Lindsay v. State, 138 Ga. 818(8), 76 S.E. 369; Jarrard v. State, 206 Ga. 112, 55 S.E.2d 706. In this case it does not appear from the record that the trial judge abused his discretion in refusing to permit the defendant's counsel to question him. In Lindsay's case, supra, it was said: 'There was no abuse of discretion in refusing to allow counsel for the defendant, over objection made, to examine the accused after he...