Dickens v. State

• Decision Date: 13 February 1912
• Parties: DICKENS v. STATE.
• Court: Georgia Supreme Court

73 S.E. 826

137 Ga. 523

DICKENS v. STATE.

Supreme Court of Georgia

February 13, 1912

Syllabus by the Court.

It is not error to overrule a plea in abatement to the indictment returned against one charged with murder, where the indictment is not only regular on its face, but where it appears that the foreman of the grand jury, and each member thereof who participated in the finding of the indictment were regularly summoned and impaneled according to law, under the direction and approval of the presiding judge.

(a) The jury commissioners of each county are the proper judges of the qualifications of the citizens to be placed on the jury lists of the county.

(b) And where "all lawyers, ministers of the gospel, doctors dentists, railroad engineers, and firemen" are left off the jury lists of the county by the jury commissioners, it is no ground for a plea in abatement and challenge to the array in a criminal case.

On the call of the case against one charged with murder, a motion was made to continue it for the purpose of getting the evidence of an absent witness, and it appeared that the witness on account of whose absence the motion was made had died the night previous to the day the case was finally called for trial. Held, that it was not error to refuse a continuance.

A ground of a motion for a new trial not approved by the court below will not be considered.

An excerpt from the charge of the court on the subject of reasonable doubt, which does not contain an essential feature of the law on the subject will not be held to require a new trial, where the general charge on the same subject immediately preceding and following the excerpt, states the rule correctly, and the whole charge omitted from this ground of the motion for a new trial meets squarely the objection urged against the excerpt complained of.

Voluntary drunkenness is no excuse for crime.

There was no error in the charges of the court, as set out in the sixth and seventh divisions of the opinion, of which the defendant can rightly complain.

Where the charge of the court to the jury on a given subject is substantially correct, and a fuller charge is desired, a request therefor should be made.

The verdict is supported by the evidence.

(Additional Syllabus by Editorial Staff.)

In a prosecution for murder, it is not error as against the defendant to instruct that malice is excluded if the intention to kill grows but of hot blood produced by provocation other than that produced by mere words, menaces, or contemptuous gestures, and if the provocation be induced by an actual assault, by an attempt to commit a serious injury upon the person, or by other equivalent circumstances calculated to excite sudden passion, the fact that defendant shot with the intention to kill would not render the offense murder, but he would be guilty of voluntary manslaughter.

In a prosecution for murder, it is not error to charge that the doctrine or reasonable fears only applies when the danger is urgent and pressing, or apparently so, at the time of the killing, especially where the court had charged that the defendant is not required to demonstrate that a felony was about to be committed upon him, or that his life was in danger, but only that the circumstances as they appear to him were sufficient to make him so believe.

Error from Superior Court, Walton County; C. H. Brand Judge.

At Dickens was convicted of murder, and brings error. Affirmed.

Jno. R. Cooper and E. W. Roberts, for plaintiff in error.

Clifford Walker, Sol. Gen., and T. S. Felder, Atty. Gen., for the State.

HILL J.

At Dickens was tried and convicted of murder and sentenced to life imprisonment in the penitentiary. A motion for a new trial being overruled, he excepted. Before arraignment the defendant filed a plea in abatement to the indictment returned against him and challenged the array, on the ground that the grand jury as first called consisted of 23 men, who were instructed by the court to retire from the courtroom and elect a foreman. They did retire and elected W. H. Nunnally foreman and returned to the courtroom. The court then stated that since the jury had retired one of the absent jurors, Pleas Stanton, had come in. "Wherefore W. H. Nunnally was stricken from the grand jury as foreman, and this juror was added to the list, and the grand jury was again, for the second time, ordered to return to their room and elect another foreman, and therefore they returned to their room and elected John T. Robertson foreman of the grand jury, and when they returned to the courtroom, the jury was sworn by the Solicitor General, according to law." In a note appended to this ground of the motion for a new trial, the presiding judge says: "W. H. Nunnally was never sworn in as a grand juror at said term of the court. He was not sworn in as foreman of said grand jury. He was not selected by the judge or court as such foreman. He did not take the oath of office in either capacity. When the 23 jurors being present answered, the judge instructed them to go to the jury room and select a foreman. As they returned from the jury room, being in there only a minute or two, and before the jury had taken their seats, and before any announcement was made that any one had been selected foreman, the sheriff publicly called the court's attention to the fact that Mr. Stanton, who did not at first respond to his name, and who was on the venire of the grand jury, had just come into court. The court thereupon asked Mr. Stanton if he had any excuse to render why he should not serve on the grand jury at that term of the court. He said he had none. His name having been drawn, and it appearing on the said list before said Nunnally's name, and the regular time of opening the court, according to custom on Monday morning, not having arrived by a few minutes, Mr. Stanton was instructed to take his place on the grand jury, he making 23, thus excluding Nunnally, who made the twenty-third juror present before said Stanton came into court. The court then told the grand jury, with Nunnally off and Stanton on, to retire to the room and select a foreman, which they did, selecting said Robertson, as aforesaid, which selection was approved by the court. All this occurred without any information on the judge's part from any grand juror or any source whatever that said Nunnally had been selected to act as foreman. Said Stanton's name was No. 6 on said list. Said Nunnally's name was No. 28 on said list. If said Stanton had been present and responded to his name when it was first called, the grand jury would have been impaneled and qualified exactly as it was subsequently impaneled and qualified, because it would have been thus completed before Nunnally's name was ever reached. Anything in said evidence above referred to, in conflict with this statement, is not true. Under these facts and circumstances the said plea in abatement was decided against the defendant."

It is insisted that the indictment is illegal for the following reasons: (1) Because it was found by an illegal grand jury not chosen according to law. (2) Because John T. Robertson was not the legal foreman of the grand jury, but W. H. Nunnally was the legal foreman duly elected by that body. (3) Because the court did not have authority to withdraw from the jury a duly elected foreman, W. H. Nunnally, without cause, and substitute another grand juror who had come in late, and trouble the body to elect another name. (4) Because the court should have put a fine upon the absent juror, if he had no legal excuse. (5) Because the jury commissioners arbitrarily excluded from the grand jury and the petit jury all lawyers, ministers of the gospel, doctors, dentists, railroad engineers, and firemen, there being ten or other large number of each class in the county, who were citizens and residents and possessed the qualifications required by law for grand jurors and petit jurors. "Defendant contends that the arbitrary exclusion of this class without reference to their qualifications was in violation of the statute and Constitution of the state of Georgia, and especially that provision of the Constitution which guarantees due process of law, and that it was in violation of the fourteenth amendment of the Constitution of the United States, as well as other provisions of that instrument, and had the effect of denying to the prisoner due process of law and the equal protection of the law and alledged [abridged?] his privileges and immunities as citizens of the United States. The arbitrary exclusion of the class of citizens from the grand and petit jury is contrary to the Constitution and laws of the land."

There was no error in deciding the plea in abatement against the defendant's contention on all the grounds stated therein. So far as the record discloses, the grand jury was legally organized. The jury had not been organized when Nunnally was withdrawn, and Stanton, who was regularly drawn as a grand juror, was substituted in his stead. The presiding judge did not know who had been selected as foreman when the juror Stanton was substituted for Nunnally. The oath had not been administered when...