Durham v. The State Of Ga.

• Decision Date: 28 February 1883
• Citation: 70 Ga. 264
• Parties: Durham. vs. The State of Georgia.
• Court: Georgia Supreme Court

70 Ga. 264

Durham. vs. The State of Georgia.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

Criminal Law. Practice in Superior Court. Charge of Court, Evidence. Jurors. Witness. Before Judge Hood. Terrell Superior Court. May Term, 1882.

Durham was indicted for murder, and on the trial was convicted, with a recommendation to mercy. He moved for a new trial, which was refused, and he excepted. The substantial facts disclosed by the testimony are set out in the tenth division of the decision. For the other facts see the decision.

Pickett & Parks; Fort & Simmons; Kennon & Hood, for plaintiff in error.

Clifford Anderson, attorney general, by Jackson & King; J. H. Guerry, solicitor general; L. C. Hoyl; R. F. Simmons, for the state.

Crawford, Justice.

The assignment of error in this case is the refusal of the judge to grant a new trial, upon the various grounds set out in the motion therefor.

1, 2, 3. The first three are that the verdict is contrary to law, contrary to evidence, the weight of evidence, and contrary to law and evidence. A close examination of the entire record satisfies us that these grounds are not well taken.

4. The fourth is that one of the jurors, H. G. Lamar, during their deliberations over the verdict, read to his fellow jurors from the Code of 1873, the definition of murder, express and implied malice, and manslaughter; and commented on the same from the judge's seat in the court room.

Touching this ground, the judge says that, for the comfort of the jurors at night, they had been allowed the use of this room during the trial, not only by the consent of the counsel for the defendant, but by his express wish that they should be allowed to do so. The judge says that he suggested that they might get the books in the court room, when Mr. Simmons, defendant's counsel, said in reply that " he did not care; the more they read, the less they'd know." After they had been charged by the judge, and the case submitted, and before the adjournment for the night, the counsel for the state and the defendant were called to the bench privately, and told by the judge that he had doubts on his mind whether they should be allowed, after entering upon the consideration of their verdict, to still occupy the court room, as they would have access to the Code and other law books: whereupon Mr. Simmons, defendant's counsel, immediately replied, thathe did not care if they did, and insisted on their being allowed to remain. With this unqualified consent, given after the statement to counsel about the books, the jury were allowed to occupy the room as before.

The refusal of the judge to grant a new trial on this ground was proper and legal. And we do not see exactly upon what reason counsel can justify such an attempt to take advantage of an agreement so deliberately entered into, privately with the judge, and publicly in open court. It may be that the importunity of a condemned client overcame that just sense of propriety which otherwise we know counsel must have recognized.

Looking, then, to the question of law taken in this ground we say that the waiver by the prisoner's counsel was binding upon him, and upon the following authority:

In the case of Sarah, a slave, vs. The State, 28 Ga., 581, this court say: " And we lay down the broad proposition that, as a prisoner may waive even a trial itself, and be capitally punished upon his own confession of guilt, he may waive any minor right or privilege." Again in the case of Hoye vs. The State, 39 Ga., 719, it was held that " a defendant who is charged with a crime involving his life or liberty, is not held to have waived anything, unless by express agreement for the purposes of the trial." And further, the judge delivering the opinion for the court said: " He waives nothing by implication or intendment. And unless he expressly waives an objection to the adjournment, with a view to a trial which is to bind him, he may take advantage of it even after verdict." It will also be seen in the case of Martin vs. The State, 51 Ga., 567, that a defendant may lose a privilege or a right by a clear and distinct waiver thereof.

That which was done in the case at bar, leaves no room to doubt but that this ground, under the authorities cited, was properly overruled.

5, 6. The fifth and sixth grounds, not being certified to, cannot be considered.

7. The seventh ground is based upon the refusal of the judge to give certain written charges requested by defendant\'s counsel.

The judge states that he gave the substance of the requests in his general charge, and after he had completed it, out of abundant caution, he inquired of counsel if there were anything else they would have him charge, when Mr. Simmons of counsel for defendant arose in his place, and in the presence of the jury said " No, " that "defendant was entirely satisfied with the charge, " which he understood to be a withdrawal of the charges requested.

8, 9. These two grounds the judge also refused to certify.

10. Because the judge said to the jury, " Under my view of this case, involuntary manslaughter has nothing to do with it."

The correctness of this statement of the judge depends upon the facts shown by the proofs. If in any possible view of the case a verdict for involuntary manslaughter might have been found by the jury, then the judge erred; otherwise he did not.

The record shows that the cause of the quarrel which resulted in the death of the deceased, originated between the defendant and one J. B. Hays, in which it is shown by the state that a dispute arose between...