Ferguson v. State

• Decision Date: 09 May 1963
• Docket Number: No. 22011,22011
• Citation: 219 Ga. 33,131 S.E.2d 538
• Parties: Billy FERGUSON v. The STATE.
• Court: Georgia Supreme Court

Page 538

131 S.E.2d 538

219 Ga. 33

Billy FERGUSON v. The STATE.

No. 22011.

Supreme Court of Georgia.

May 9, 1963.

Rehearing Denied May 29, 1963.

Syllabus by the Court

For the reasons given in the opinion the judgment is affirmed.

This is the third appearance of this case in this court. See Ferguson v. State, 215 Ga. 117, 109 S.E.2d 44, reversed in Ferguson v. State of Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783, judgment conformed in Ferguson v. State, 216 Ga. 794, 120 S.E.2d 123; see also Ferguson v. State, 218 Ga. 173, 126 S.E.2d 798.

The evidence on this trial was substantially the same as that presented in the two previous trials. The jury found the defendant guilty without recommendation. The exception is to the denial of defendant's motion for new trial on the general and 6 special grounds.

A. Hugh Leatherwood, Sr., Douglasville, for plaintiff in error.

Dan Winn, Solicitor General, Cedartown, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.

MOBLEY, Justice.

1. The general grounds are without merit. This court has twice held that substantially this same evidence amply supported the verdict. We so hold again.

2. There is no merit in defendant's complaint that the participation, over defendant's objection, of Eugene Brown, County Attorney of Douglas County, Georgia, and Robert Noland, City Attorney of Douglasville, Georgia, in the prosecution of the case by the solicitor general denied him due process of law, his right to a fair and impartial trial, and his right to equal protection of the law in violation of Art. I, Sec. I, Par. II, III, and IV of the Constitution of Georgia (Code §§ 2-102, 2-103, 2-104) and amendments V, VI, and XIV of the United States Constitution (Code §§ 1-805, 1-806, 1-815).

It is well settled that the solicitor general may have counsel to assist him. See Vernon v. State, 146 Ga. 709(1), 92 S.E. 76; Jackson v. State, 156 Ga. 842, 844 (7), 120 S.E. 535; Hannah v. State, 212 Ga. 313, 314(2), 92 S.E.2d 89. The trial court in overruling this ground pointed out that only two attorneys participated in the prosecution, Dan Winn, the solicitor general, and Robert J. Noland, attorney; that the regular assistant solicitor general, J. T. Perren, did not participate in the case at all; that it was not shown that any of the jurors knew that Brown was the county attorney or that Noland was the city attorney and no mention was made of these facts during the trial; and that he found 'as a matter of fact that there was no undue influence of the jury under the circumstances.' There is no showing whatever that the defendant was deprived of any of his constitutional rights by reason of the fact that the solicitor general was assisted in the prosecution by two lawyers, one of whom was County Attorney of Douglas County and the other who was City Attorney of Douglasville.

3. In special ground 2 of the motion for new trial the defendant complains of the refusal of the court to grant his motion for mistrial.

The record discloses that after the defendant was arraigned and entered his plea of not guilty, and while the jury was being selected, the solicitor general propounded a question to a prospective juror, to which the defendant objected and moved for a mistrial on the ground that the question asked the juror was improper, prejudicial, and harmful to the defendant. The question asked was: 'If you should find the accused guilty, the law would allow you to recommend mercy or not recommend mercy. Without trying to pin you down, I will tell you that you don's have to have a reason, nor do you have to give a reason, if you decide to recommend mercy you do not have to answer to the court or anyone, you can make it absolutely without any reason at all. However, do you agree with me that you should have some reason, based upon the evidence in this trial, before you would feel like recommending mercy?'

The time for making a motion for mistrial is not ripe until the case has begun, and the trial does not begin until the jury has been impaneled and sworn. The defendant has been put in jeopardy when, in a court of competent jurisdiction, and upon a sufficient indictment, he has been arraigned, has pleaded, and the jury has been impaneled and sworn. Barbour v. State, 66 Ga.App. 498, 500, 18 S.E.2d 40. See also Peavey v. State, 153 Ga. 119(1), 111 S.E. 420; Newsom v. State, 2 Ga. 60; Reynolds v. State, 3 Ga. 53(2); Nolan v. State, 55 Ga. 521(1); Doyal v. State, 70 Ga. 134(3); Franklin v. State, 85 Ga. 570, 11 S.E. 876. A motion for a postponement of the case until new jurors who had not heard the question asked were selected would have been the proper motion here. Perdue v. State, 135 Ga. 277(1), 281, 69 S.E. 184. Since the motion for mistrial was made before the jury was impaneled and sworn, the trial court did not err in overruling it.

Furthermore, while the question was improper, there is no showing that any juror selected to try the case was asked the question or heard it asked of other jurors. The record shows that a number of jurors called were asked the question before the defendant made any objection, and that after the court denied the motion for mistrial there was no further objection to the asking of the question. In these circumstances the denial of the motion for mistrial was not error. The trial court properly overruled special ground 2 of the motion for new trial.

4. 'Exceptions to conclusions and rulings by the trial judge upon preliminary and collateral issues, such as a challenge to the array of trial jurors, cannot properly be made grounds of a motion for new trial, but should be directly excepted to in the bill of exceptions * * *. This was not done in the present case. Herndon v. State, 178 Ga. 832, 174 S.E. 597; Hargroves v. State, 179 Ga. 722, 177 S.E. 561; Benford v. State, 18 Ga.App. 14, 88 S.E. 747.' Mattox v. State, 181 Ga. 361(1), 182 S.E. 11.

Accordingly, the third special ground, which averred that the court erred in overruling defendant's challenge to the array of trial jurors, raises no issue for the consideration of this court.

5. In special ground 4 it is contended that the court erred in admitting over the objection of defendant's counsel a wallet and its contents and a pistol identified as belonging to the deceased, which items were obtained by a search of defendant's room in a rooming house without a search warrant and while defendant was in custody. The record discloses that defendant freely and voluntarily agreed for the officers to search his room. This question was adjudicated against defendant's contention by this court upon the previous appearance of this case in Ferguson v. State, 218 Ga. 173, 179(8), 126 S.E.2d 798.

The ground is without merit.

5. In special ground 5 defendant complains that one of the jurors who served on the jury, J. J. Schell, was prejudiced and biased against the defendant, which was...