Ferguson v. State

• Decision Date: 11 July 1962
• Docket Number: No. 21661,21661
• Citation: 218 Ga. 173,126 S.E.2d 798
• Parties: Billy FERGUSON v. The STATE.
• Court: Georgia Supreme Court

Page 798

126 S.E.2d 798

218 Ga. 173

Billy FERGUSON v. The STATE.

No. 21661.

Supreme Court of Georgia.

July 11, 1962.

Syllabus by the Court

For the reasons set forth in divisions 1, 5, and 9 of the opinion, the court erred in denying the motion for new trial as amended.

A. H. Leathwood, Sr., Douglasville, for plaintiff in error.

Dan Winn, Solicitor Gen., Cedartown, John T. Perren, Asst. Solicitor Gen., Dallas, Robert J. Noland; Eugene B. Brown, Douglasville, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.

HEAD, Presiding Justice.

Billy Ferguson was indicted for the murder of Luke A. Brown, and was tried, convicted, and sentenced to death by electrocution. On review his conviction was affirmed by this court. Ferguson v. State, 215 Ga. 117, 109 S.E.2d 44. Subsequently the judgment of affirmance by this court was reversed by the Supreme Court of the United States. Ferguson v. State of Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783. The judgment of reversal by the Supreme Court was duly made the judgment of this court. Ferguson v. State, 216 Ga. 794, 120 S.E.2d 123. Ferguson was again tried, convicted, and sentenced to death by electrocution. His motion for a new trial as amended was denied, and the exception is to this judgment.

1. In ground 1 of his amended motion for a new trial error is assigned because the defendant was 'required to interpose his challenge to each individual juror immediately after the voir dire questions and was denied the right to examine each of the remaining jurors from which the jury was to be selected before interposing his challenge to either of them.'

The solicitor general filed a response to the grounds of the amended motion, and as to ground 1 it was stated in part: 'Counsel for defendant made it clear to the Court that he not only wanted 48 jurors impaneled but he wanted 48 jurors qualified and by statutory voir dire questions and also individual examination prior to selection of the first juror.'

The grounds of the amended motion for new trial, together with amendments (Exhibits A and B) were unqualifiedly approved (except ground 7 which was disapproved) on January 30, 1962. Thereafter in passing upon the motion for new trial the trial judge made the following statement as to ground 1: 'As to ground 1; there was no challenge to the impaneling of all these jurors or to the array in any manner and there were actually 96 jurors properly impaneled and given the preliminary oath prior to being put on the defendant for challenge and from which to select the jury.' This statement by the trial judge is in effect the same as that made by the solicitor general in his response to the amended grounds of the motion for a new trial.

'A ground of a motion for new trial disapproved, or not substantially approved, by the trial judge will be disregarded by a court of review, as presenting nothing for consideration. However, where a ground is substantially approved, it is the duty of a court of review to consider and decide the question substantially presented.' Fair v. State, 171 Ga. 112(3), 155 S.E. 329; Cutis v. Geiger, 176 Ga. 864(1, 2), 169 S.E. 127; Taylor v. Taylor, 195 Ga. 711, 718, 25 S.E.2d 506. In the present case the additional statement by the trial juge did not limit, restrict, or modify the former unqualified approval of ground 1, to the effect that the defendant was denied the right of individual examination of each juror prior to interposing a challenge, and the question made as to the right to individual examination is properly before the court for determination.

The defendant relies upon the provisions of the act of 1951 (Ga.L.1951, p. 214, Code Ann.Supp. § 59-705) as follows: 'In all criminal cases both the State and the defendant shall have the right to an individual examination of each juror from which the jury is to be selected prior to interposing a challenge. Such examination shall be conducted after the administration of a preliminary oath to the panel or in criminal cases after the usual voir dire questions have been put by the court, * * *'

The question here involved was settled by this court in the full-bench decision in Blount v. State, 214 Ga. 433, 105 S.E.2d 304. After quoting the provision for examination prior to challenge, it is stated (Headnote 3): 'This language clearly states that the defendant has the right contended for. It does not leave the matter to the discretion of the trial judge, but states that the defendant 'shall' have the right to an individual examination of each juror prior to interposing a challenge.' Under the ruling of the court in the Blount case, it was reversible error to deny the defendant the right of individual examination of the jurors prior to challenge.

2. In ground 2 error is assigned on the refusal of the court to strike for cause, on defendant's motion, named prospective jurors. In the final order denying the motion for a new trial as amended, the trial judge disapproved amended ground 2. The errors alleged to have been committed in this ground can not be reviewed.

3. In ground 3 it is contended that 'the court erred in overruling objections of defendant to the presence of five relatives of the deceased' seated 'at the prosecution table' actively assisting in 'the prosecution of the defendant.' It is contended that the presence of these relatives was for the purpose of influencing the jury and that 'their presence and placement at said prosecution table did so influence and intimidate the jury, and was prejudicial to the right of the defendant to a fair and impartial trial.'

In support of this ground there is attached to the amended motion an affidavit by counsel (Exhibit B) which recites that during a short recess counsel entered the chambers of the trial judge and called the attention of the judge and the prosecuting attorney to these facts, contending that this was prejudicial to the defendant's right to a 'fair trial by a fair and impartial jury;' and that neither the solicitor general nor the trial judge ordered the removal of any of the five persons or a change in the seating arrangement. This ground of the amended motion (together with Exhibit B) was approved.

In the order denying the motion for a new trial, as to this ground it is stated: 'The Court finds as a matter of fact that there was no timely objection made concerning this ground and no ruling of the Court was invoked on this ground. There was nothing unusual nor prejudicial about the seating arrangement at the table of the solicitor general, and it was exactly as it had been arranged for other trials in this Court for several years.'

If counsel desired to invoke a ruling by the court as to the right of the solicitor general to have seated at the prosecution table four near relatives of the deceased, in addition to the brother, who was the prosecutor, he should have made a motion in open court. Nothing said in a private conversation with the judge in his chambers is a proper subject matter of review by this court. Grant v. State, 97 Ga. 789, 25 S.E. 399; Flanagan v. State, 106 Ga. 109, 115, 32 S.E. 80.

4. On October 2, 1960, the defendant filed a written motion for a change of venue upon the grounds that the defendant could not obtain an impartial jury in the county where the crime was alleged to have been committed, and that the defendant can not receive a fair and impartial trial in Douglas County. On April 18, 1961, the defendant amended his motion for change of venue by adding two paragraphs. In paragraph 5 it was alleged that a large number of the prospective jurors 'are themselves Special Deputy Sheriffs of Douglas County, which would tend to prevent defendant from having a jury in Douglas County that would consider all testimony fairly and impartially.' Paragraph 6 alleged that counsel for the defendant was threatened with bodily harm by a citizen of Douglas County while counsel was acting as an officer of the court in the service of subpoenaes in connection with the hearing on the motion for change of venue, and that counsel fears that violence may be perpetrated upon him if the case is tried in Douglas County.

After a hearing on the motion for change of venue, the trial judge entered an order on May 8, 1961, wherein it was recited in part: 'The Court finds as a matter of fact that a fair and impartial jury can be obtained in Douglas County for the trial of said defendant, and that he can receive a fair and impartial trial in Douglas County, Ga. The Court finds as a matter of fact that no constitutional rights of the defendant will be violated by his being tried in Douglas County, Ga. * * * The Court finds as a matter of fact that there is no danger of bodily harm to counsel for defendant, nor is there reasonable grounds for any fear that violence may be perpetrated upon him.'

The motion for change of venue was denied. Thereafter the defendant sued out a bill of exceptions to the Court of Appeals based on the ground of violence, and the Court of Appeals affirmed the judgment of the trial court denying the change of venue upon...