Ethridge v. State, (No. 5398.)

• Decision Date: 15 November 1928
• Docket Number: (No. 5398.)
• Citation: Ethridge v. State, 163 Ga. 186, 136 S.E. 72 (Ga. 1928)
• Parties: ETHRIDGE . v. STATE.
• Court: Georgia Supreme Court

163 Ga. 186

136 S.E. 72

ETHRIDGE .

v.STATE.

(No. 5398.)

Supreme Court of Georgia.

Nov. 15, 1928.

Rehearing Denied Dec. 20, 1926.

(Syllabus by the Court.)

[COPYRIGHT MATERIAL OMITTED]

Russell, C. J., and Atkinson, J., dissenting in part.

Error from Superior Court, Jones County; James B. Park, Judge.

Grover Ethridge was convicted of murder, and he brings error. Affirmed.

Allen & Pottle, of Milledgeville, W. A. McClellan, of Macon, and E. T. Dumas, of Gray, for plaintiff in error.

Jos. B. Duke, Sol. Gen., of Eatonton, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

HILL, J. Atkinson Ethridge and Grover Ethridge were jointly indicted for the murder of Floyd Malone and Frank Tucker, by shooting them with a gun and pistol. On the trial the defendants severed, and Grover Ethridge was put upon trial. The state relied for conviction upon circumstantial evidence. The jury returned a verdict of guilty, with a recommendation to mercy, and the defendant was sentenced by the court to serve in the penitentiary for life. He filed a motion for new trial upon the general grounds and 39 special grounds. The motion was overruled, and the defendant excepted.

1. Error is assigned in the first special ground of the motion for new trial, because the court ruled that one of the jurors was qualified as a juror to serve in the case. "The undisputed evidence showed that the juror's father's great-great-grandmother was a sister of the grandfather of Frank Tucker, the deceased. Movant respectfully contends that said juror was within the prohibited degree of relationship, and was therefore incompetent to serve on said jury." In a note to this ground the court says:

"As to juror Gresham, Jr., Mr. Gresham stated he was a son of the juror who had shortly before disqualified on account of relationship to Mr. Tucker, one of deceased. Mr. McClelland: We charge [challenge] the juror on account of relationship to Mr. Tucker. By the Court: If the statement of facts made to the court is correct, I hold that he is a tenth cousin and would not be disqualified. As I understand it, he claims he is a son of the man whose great-grandmother was a sister of Mr. Tucker's grandfather. So I hold that he is removed in the tenth degree, and would therefore not be disqualified on account of relationship; and defendant's counsel say they are willing to take the statements made by this other juror, Gresham, Sr. (The juror was stricken by defendant's counsel.)"

We are of the opinion that the court erred in holding that the juror was removed in the tenth degree, and that he was therefore not disqualified on account of relationship to serve on the jury. One of the challenges for cause to a juror is that he is so near of kindred to the prosecutor, or the accused, or the deceased, as to disqualify him by law from serving on the jury. Penal Code 1910, § 999(4). In Crawley v. State, 151 Ga. 818 (3), 108 S. E. 238, 18 A. L. R. 3G8, this court held:

"A juror in a criminal case who is related either by consanguinity or affinity within the ninth degree to the prosecutrix, ascertained according to the rules of the civil law, is a disqualified juror." O'Berry v. State, 153 Ga. 644, 113 S. E. 2.

And see Davis v. State, 153 Ga. 669 (2), 672, 113 S. E. 11; Smith v. State, 2 Ga. App. 574, 576, 59 S. E. 311.

The following diagram shows the relationship of the juror held to be disqualified, according to the undisputed statement of the relationship, made to the court:

--------------------------------------------------------
                |Common ancestor              |Sister and Brother     ||
                |-----------------------------|-----------------------||
                |Great-great-great-grandmother|Great-great-grandmother||
                |-----------------------------|-----------------------||
                |Great-great-mother           |                       ||
                |-----------------------------|-----------------------||
                |Grandmother                  |                       ||
                |-----------------------------|-----------------------||
                |Father                       |                       ||
                |-----------------------------|-----------------------||
                |Grandfather                  |Father                 ||
                |-----------------------------|-----------------------||
                |Deceased                     |                       ||
                --------------------------------------------------------
                

It therefore appears that the juror, who was held to be competent, and who was stricken by the defendant, was related within the ninth degree to the deceased. But, notwithstanding the fact that the juror was disqualified, the plaintiff in error does not show that he was hurt by reason of the fact that the juror was put upon him. When the plaintiff in error assigns error he must show that he was in some way injured—that there was injury to him, or an advantage to the state; and no such harm appears here as would require the grant of a new trial. It does not appear that the plaintiff in error had exhausted his strikes. See Doyal v. State, 70 Ga. 134 (2). In Ford v. State, 12 Ga. App. 228, 76 S. E. 1079, it was held:

"Although a juror was subject to challenge for cause, on the ground that he was over 60 years of age, yet where it does not appear that the juror served on the panel that triedthe accused, or that the accused was compelled, by the overruling of his challenge for cause, to exhaust his peremptory challenges for the purpose of getting rid of the juror, error in holding him competent [was] immaterial."

In delivering the opinion of the Court of Appeals, Judge Hill said:

"According to the method of computation of time, under repeated rulings of the Supreme Court in this state, the juror was shown by his answer to have been over 60 years of age; but as the record fails to disclose whether the accused was compelled to exhaust his peremptory challenges for the purpose of getting rid of this juror, or even that he served on the jury that tried the accused, the contrary ruling by the trial judge must be regarded as harmless, for, in the absence of such proof, it was immaterial whether the juror was over 60 years old or not."

And to the same effect it is stated in 16 R. C. L. 202, § 106:

"In general, where it does not affirmatively appear from the record that a party had exhausted his peremptory challenges at the time the full panel of jurors was accepted and sworn, the appellate court will presume that he was not prejudiced by the action of the court in erroneously disallowing his challenge for cause, and will not grant a reversal for the alleged error."

The following authorities are cited in support of the above text: 9 Ann. Cas. 279, 281; Ann. Cas. 1915D, 98, and citations. And see 24 Cyc. 324(9); State v. Humphrey, 63 Or. 540, 128 P. 824; Olmsted v. Noll, 82 Neb. 147, 117 N. W. 102; State v. Banner, 149 N. C. 519, 63 S. E. 84; State v. White, 40 Utah, 342, 121 P. 579; Knollin v. Jones, 7 Idaho, 466, 63 P. 638; State v. Albano, 119 Me. 472, 111 A. 753; De Arman v. State, 80 Tex. Cr. R. 147, 189 S. W. 145; People v. Slaughter, 33 Cal. App. 365, 165 P. 44.

2. Grounds 2, 3, 4, 5, 6, 7, 8, 9, 14, 17, 21, 31, 32, and 33 of the amendment to the motion for new trial will be considered together. These grounds allege error because the court permitted witness M. J. Wood and others to testify as to certain conduct, on the day of the homicide, of Atkinson Ethridge, brother of the plaintiff in error, Grover Ethridge, and jointly indicted with him. This testimony was objected to on the ground that it was irrelevant and prejudicial to the plaintiff in error. The insistence of the state is that the evidence is relevant on the theory that there was a conspiracy between Grover and Atkinson Ethridge to murder the deceased. The plaintiff in error insists that there is no proof, cither direct or circumstantial, of the alleged conspiracy, and that the rule as to sayings and conduct of a coconspirator pending the illegal enterprise has no application to the present case. Of course, where a conspiracy has been proved to exist, the sayings and conduct of one of the conspirators relative to the criminal undertaking are admissible as against them all (Penal Code, § 1025), and the conspiracy can be shown by circumstances, as well as by direct proof (Lynn v. State, 140 Ga. 387 [7a], 79 S. E. 29, and citations).

The evidence for the state tended to show that there was an illicit distillery on the land of Atkinson Ethridge; that Grover Ethridge had been seen taking supplies to the still; that he carried whisky away from the still and from the house of Atkinson Ethridge, the alleged coconspirator; that some time prior to the homicide he had made threats to the effect that, if any one destroyed a still of his, he was none too good to kill him; that on the day of the homicide the illicit still in question was destroyed by Malone and Tucker, the deceased, who were officers of the law charged with that duty; that almost immediately afterwards Grover and Atkinson Ethridge were seen going in the direction of the place where the homicide occurred, each in a separate automobile, that in which the plaintiff in error rode having "a diamond-tread tire, " and an automobile track made at or near the scene of the killing was made by one having a diamond-tread tire; that about the time that the homicide was alleged to have been committed Grover and Atkinson Ethridge were seen coming from the direction of the scene of the homicide, both running their cars very fast; that both went in the direction of Macon, Ga.; and that, when an investigation was being made at the scene of the murder, in order to ascertain who committed it, neither Grover nor Atkinson Ethridge was present, or joined in the search to apprehend the murderers. These and other circumstances shown in the record were sufficient, we think, to authorize the jury to infer that a conspiracy existed between the two brothers to murder the deceased; and that being so, we are of the opinion that the testimony of the witness M. J. Wood,...