Finch v. State

• Decision Date: 29 April 1976
• Docket Number: No. 51683,3,2,Nos. 1,51683,s. 1
• Citation: 138 Ga.App. 668,226 S.E.2d 779
• Parties: Jessie FINCH v. The STATE
• Court: Georgia Court of Appeals

Page 779

226 S.E.2d 779

138 Ga.App. 668

Jessie FINCH v. The STATE.

No. 51683.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 29, 1976.

Rehearing Denied May 18, 1976.

John W. Timmons, Jr., James W. Purcell, Athens, for appellant.

Ken Stula, Sol., Athens, for appellee.

PANNELL, Presiding Judge.

Upon motion for rehearing, and the filing of a supplementary record of evidence and proceedings in the case, the facts appear to be as stated hereinafter.

The State Court of Clarke County convened the May, 1975 Term of Court for the sole purpose of trial of criminal cases. Petit Jurors had been summoned and were present in the Courtroom.

On the morning of May 15, 1975, the Solicitor of the Court called several cases and, for various reasons known to the Court, but unknown to the Jurors assembled, it was impossible to immediately begin the trial of any case.

The Solicitor announced that he had cases which he thought could be tried that afternoon but that he needed permission to go to his office to ascertain if he had any further cases that could be tried that morning. Permission was granted.

While he was thus absent from the courtroom, the judge, observing the restlessness of the jurors, declared a recess, left the bench and stood in the area before the jurors and made an explanation of the delays. It was stated that some attorneys in cases called were in higher courts than his and that as his court was of inferior jurisdiction to those courts, the case or cases were automatically continued. That, in some cases 'called bonds' had been forfeited because of absence of defendants. That bench warrants were issued for those not present, and that this consumed time. That all cases could not be set for trial on any given day because of limit of space for all parties. That due to alleged shortage of funds and multiplicity of cases, all subpoenas in all cases had not been served. That due to overcrowding of correctional institutions and court personnel to supervise those convicted, the court had not been able to do its job efficiently. That the court was holding the jurors to see if any cases could be tried by them that morning. That persons such as the jurors should bring pressure on County and State officials to properly fund the courts.

He further stated that it was an imposition for jurors to be compelled to stay in court when defendants did not appear, but that it was necessary for them to remain in order to be ready to try those who did appear for trial or plea.

The jurors were invited to ask questions of the judge and did so. During this discussion it was stated that nearly two-thirds of those arrested were repeaters. That through experience it had been found that if a juvenile offender could be properly treated and supervised he or she would not tend to repeat their criminal activities; that otherwise, having found the first offense to be easy, many later tended to commit misdemeanors; that if misdemeanor offenders could be apprehended and properly treated and supervised, they would tend not to go on to the more serious crimes and felonies; that unless an offender did receive proper treatment and supervision as a juvenile or misdemeanant, or had escaped apprehension for these lesser crimes, the offender would often go on to commit felonies. No defendant's name was called or any case mentioned.

In the afternoon of the same day, the case of Jessie Finch versus the state was called. The defense attorney asked for a continuance on grounds that the speech of the judge made it impossible to get an impartial jury; that the judge's speech had prejudiced the jury, and that such prejudice could not be erased from their minds.

The defense attorney was given great latitude in his voir dire examination and the judge qualified the jury as to whether there was any prejudice or bias on their minds. All answered that they were not prejudiced or biased between the State and the accused. They, after statements by the judge and questions by attorneys, stated they had not been prejudiced against the defendant and could fairly try the case. Held:

1. Enumeration of error No. 1 is that after the prejudicial speech by the judge, appellant could not strike a panel of impartial and disinterested jurors.

Held as to this enumeration: the jurors all responded as being qualified as to freedom from prejudice and bias as between the State and the accused after thorough explanations and questions. They were the highest and best judges of their feelings. In this enlightened day and time we are aware that all jurors have some prejudice, but that this does not impair their ability to be fair in judgments under the evidence presented to them. These jurors were not, by their statements, prejudiced as between the State and this accused, and that is all that was necessary to qualify them.

Chief Justice Lumpkin, in the case of Parker v. State, 34 Ga. 262, 266, said: 'On the trial, when empaneling the jury, the statutory question was propounded to one James C. Thurman;-that is, whether his mind was perfectly impartial between the State and the prisoner? He answered that he was not satisfied that he was,-adding, that he had partiality in his mind. In reply to questions put by the Court, he stated that he did not personally know the prisoner, or the facts of the case, and had no prejudice against the prisoner as an individual, but in all such cases, because of the offense, he was prejudiced. The Court decided him to be competent, and he was challenged by the prisoner peremptorily.

'Now, the only question is, does the prejudice referred to in the law apply to the person of the accused, or to the offense for which he stands indicted? We think the former; otherwise, all good men would be disqualified to sit as jurors in all criminal cases. For, if they feel as they should do, they should desire the suppression of crime, and this desire will be in proportion to the aggravation and frequency of the offense. This feeling may serve to stimulate their zeal to bring delinquents to punishment. But it does not follow, by any means, that it will so warp their judgment as to render them incapable of doing justice to the parties, according to the law and the evidence of the case.'

The court held this juror competent. Under the facts in the present case, as to these jurors, even conceding, but not deciding, that prejudice was engendered by the remarks of the judge it could only have been against the crime, not this defendant. We may speculate as to their prejudice or bias but only a juror can answer for himself. There is no merit in this enumeration.

2. The second enumeration is that the court erred by expressing his personal opinion and that he shattered the presumption of innocence by his remarks. Jurors are reasonable, everyday citizens. With the bombardment of television, newspapers, speakers, government rulings and edicts they must of necessity be able to hear statements that affect their thinking and views, but do not impair their ability to rule fairly as jurors under the evidence presented.

The jurors in this case stated that they had no prejudice or bias between the State and the accused. This, after questions by the court and by the defense attorney. The jurors' questions emphasized that the speech of the judge did not influence them as to this case. They were competent jurors. The charge as to presumption of innocence was given to them. See Wilburn v. State, 141 Ga. 510, 511(3), 81 S.E. 444; Norton v. State, 137 Ga. 842(1), 74 S.E. 759.

3. The third enumeration is that reversible error was committed in failing to grant a mistrial because the judge's conduct was inconsistent with the Code of Judicial Conduct.

There is absolutely no merit in this enumeration. A trial judge does not have to be silent as to his views, except as to trial of case and evidence, etc. In this case the judge and some of the jurors agreed that his explanation helped them understand and appreciate the trials and tribulations of small courts and all courts. There is no indication by the record that the judge violated any judicial ethics in explaining his dilemma to the jurors.

I have dealt with these enumerations as they are the only ones before this court. No enumeration, other than as to alleged prejudicial remarks is before this court. No other errors are enumerated, and as was said by Justice Almand in Hess Oil &c. Corp. v. Nash, 226 Ga. 706, 709, 177 S.E.2d 70, 73: 'We do not know of any law or rule of practice and procedure that authorizes the Court of Appeals or this Court to examine the entire record and grant a new trial upon a ground of their own making and not upon a ground specified by the appellant. The duty of the appellate court is to correct errors alleged to have been made in the trial court and not to manufacture them.'

A judge should be an impartial umpire between the State and the accused. He should conduct himself at all times so as not to indicate how he thinks the jury should find in any case being tried.

We think the judge went too far in his discussion concerning the treatment of criminals, and in this respect erred. We do not approve of or condone his actions. We do not approve of the practice of judges making speeches that go as far as this speech did. However, under all the record, the time element, and answers of jurors as to their prejudice and bias, we do not think it was reversible error in this case for the reasons stated herein.

Jessie Finch was tried and convicted under accusation on two counts, (1) speeding, (2) racing. The evidence of the State was undisputed that he was driving his automobile on the expressway at a rate of speed in excess of 99 miles per hour; that he was racing with another car driven by Donald Richardson (who was killed when his car overturned during the race.) The defense offered no witnesses. As was said by Chief Justice Jackson in Hussey v. State, 69 Ga. 54, 57: 'There is no room, at all,...