Elder v. State

• Decision Date: 17 April 1915
• Docket Number: 302.
• Citation: 85 S.E. 97,143 Ga. 363
• Parties: ELDER v. STATE.
• Court: Georgia Supreme Court

85 S.E. 97

143 Ga. 363

ELDER v. STATE.

No. 302.

Supreme Court of Georgia

April 17, 1915

Syllabus by the Court.

The court erred in admitting in evidence the testimony of certain witnesses for the state, to the effect that the foot of the accused fitted certain tracks; the conformability of the defendant's foot to the tracks being material evidence in the case. The admission of this evidence violated the constitutional guaranty that no person shall be compelled to give testimony tending in any manner to criminate himself as, under the circumstances, the placing of his foot in the tracks by the defendant was not voluntary, for, though no physical force was used in placing the foot in the track, the defendant at the time was in the custody of the sheriff and handcuffed and surrounded by companions of the sheriff, and the command from the sheriff, directing the prisoner to put his foot in the tracks, was virtual coercion.

"Whether subsequent confessions, of themselves wholly unexceptionable were made under previous influences still operating on the mind, is a question, not of law for the court, but of fact for the jury."

There was no merit in the exceptions to the charge.

The ground of the motion for a new trial complaining of the overruling of the motion for a mistrial, made during the trial and based upon certain alleged misconduct of a spectator present at the trial, which was claimed to be prejudicial to the accused, is not passed upon, as it is not probable that such an incident will happen at the next trial.

Error from Superior Court, Morgan County; J. B. Park, Judge.

Jim Elder was convicted of murder, and brings error. Reversed.

Calvin George and Middlebrooks & Burruss, all of Madison, for plaintiff in error.

Jos. E Pottle, Sol. Gen., of Milledgeville, Warren Grice, Atty. Gen., and A. L. Henson, of Atlanta, for the State.

BECK J.

Jim Elder was indicted for the murder of Charlie Weaver. The jury returned a verdict of guilty, and the accused made a motion for a new trial, which being overruled, he excepted.

One of the grounds of the motion for a new trial complains of the admission in evidence of testimony of certain witnesses for the state, who gave evidence tending to show that, when the accused put his foot in certain tracks, his foot fitted the tracks. This was very material evidence in the case, as the tracks led from a field near a house in which the decedent was killed to the house of the accused, and there was some evidence tending to show that an effort had been made to obliterate these tracks. One or more witnesses for the state who saw the accused place his foot in the tracks, testified that he did it voluntarily. But the statement that he did it voluntarily was a mere conclusion of the witness. The facts and circumstances do not justify this conclusion. The accused was in charge of the sheriff and certain other persons when he was brought to the place where the tracks were under examination. He was under arrest and handcuffed. According to the evidence, he had the appearance of a man who was scared. He did not, until commanded to do so, approach the tracks and put his foot in them. He did this only when the sheriff, who had him in custody, whose command he would not have dared to disobey under the circumstances, bade him in peremptory terms to put his foot in the tracks. It is true the sheriff says that he did not try to persuade him to do this, and that he did not threaten him, but the facts stand that this officer,...