Fitzgerald v. State
| Decision Date | 09 March 1937 |
| Docket Number | 11588. |
| Citation | 190 S.E. 602,184 Ga. 19 |
| Parties | FITZGERALD v. STATE. |
| Court | Georgia Supreme Court |
Error from Superior Court, Bibb County; W. A. McClellan, Judge.
Jesse Fitzgerald was convicted of murder, and he brings error.
Reversed.
Syllabus by the Court.
It is error to allow, over objection of the defendant, prejudicial and irrelevant matter to go before the jury in a trial, which tends to place his character and conduct before the jury where the nature of the case does not involve such character and the same does not render necessary and proper the investigation thereof.
J. E Feagin, of Atlanta, for plaintiff in error.
Chas. H. Garrett, Sol. Gen., of Macon, M. J. Yeomans, Atty. Gen., and B. D. Murphy and Geo L. Goode, Asst. Attys. Gen., for the State.
Jesse Fitzgerald was tried on an indictment charging him with the murder of Susie Smith. The evidence was in conflict. Certain witnesses for the State testified to facts tending to show that the defendant shot Susie Smith with a pistol under circumstances amounting to murder; whereas, it appeared from the defendant's witnesses and from his statement that he did not shoot her, but that he was attacked by several men at the home of her mother; and that one of these men attempted to shoot him, and Susie Smith, by throwing her body in front of the defendant, received the bullet intended for him, which fatally wounded her. The jury returned a verdict finding the defendant guilty of murder, without recommendation; and he was sentenced to death. He moved for a new trial, and to a judgment overruling his motion he excepted.
1. Two grounds of the motion for new trial assign error on the overruling of a motion to declare a mistrial. It appears that the solicitor general, in his opening statement to the jury as to what he expected to prove, stated 'that the defendant lived about a block away from where the homicide occurred, and that he maintained a sort of combination house and store or cafe there, and that he only had a counter and one or two chairs there, and that there was just about $7.50 worth of merchandise in it, and that it was nothing more or less than a 'bootlegging establishment." The defendant's counsel, in moving to declare a mistrial, stated that this tended to prejudice him, that it put his character in issue, that the kind of establishment which he operated had no connection with the offense for which he was on trial, and that the purpose of such statement by the solicitor general was not to show intent, motive, scheme, or the like (see Cawthon v. State, 119 Ga. 395, 46 S.E. 897; Merritt v. State, 168 Ga. 753, 149 S.E. 46), but to establish the fact in the minds of the jury that the defendant was a man of bad character. The judge thereupon stated to the jury: It appears that, immediately afterward, the solicitor general remarked to the jury: 'Well, he only had about $7.50 worth of merchandise down there.' It further appears that while a witness for the State, a police officer who had arrested the defendant on the day before thehomicide for beating the deceased, with whom he lived (it being the contention of the State that the defendant was angry because of such arrest at the instance of the deceased, which was his motive for murdering her), was on the witness stand, and was being questioned about whether he was acquainted with the defendant by reason of his having had dealings with him as a police officer, volunterred the statement that the defendant had given the police officer of the city a great deal of trouble ever since he had been living up over the store place and had been operating the same (the place mentioned by the solicitor general in the foregoing remark). The defendant again moved to declare a mistrial, for the reasons stated above. Again the judge refused the motion, but stated to the jury that they were not to consider this statement of the witness, were to obliterate it from their minds, and that 'this case is to be tried on its merits; it must stand or fall on the evidence introduced from the witness-stand, and nothing else.'
Again, it appears that while a witness for the defendant was on the stand, he was permitted, over objection that it was irrelevant and prejudicial, to testify, in response to questions propounded to him by the solicitor general on cross-examination: The defendant contends, in his motion for a new trial, that by this testimony his character was improperly attacked and put in issue by the State, and that such evidence tended to prejudice him before the jury and to show that he was a bad man, and operated a place of ill repute.
Under the facts of this case, whether or not the defendant operated any place of ill repute, dive, or bootlegging joint, whether or not he had been frequently arrested by the police and had given them much trouble since he had been operating the store place or café underneath where he lived, and the fact that other people had been arrested for being at such a place, had nothing to do with the offense for which he was being tried and tended to place his character in issue and to prejudice him in the minds of the jury. There was no contention or effort on the part of the State to show that such facts were proper to illustrate motive, intent, scheme, etc., and none of them had any bearing on whether the defendant killed the deceased or whether she was killed by another person who was attempting to shoot the defendant at the time. Such facts tended to show to the jury that the defendant was a man of general bad character, a criminal, a bootlegger, and the operator of a bootlegging establishment and place of ill repute frequented by undersirable characters, and that he was a troublesome, dangerous, and undesirable person. Every person charged with crime is presumed to be innocent until he is proved guilty by competent evidence. Webb v. State, 11 Ga.App. 850, 75 S.E. 815, 76 S.E. 990. The Constitution of this State insures to one charged with a crime against the laws thereof that he shall have a trial by an impartial jury. Code, § 2-105 (Const. art. 1, § 1, par. 5). Therefore it is essential that the jury be not improperly influenced or prejudiced against the person on trial. It is a general rule that if the jury act from passion or prejudice against the accused in rendering their verdict against him, a new trial will be granted. Flanagan v. State, 106 Ga. 109, 32 S.E. 80. For instance, where they have read matter prejudicial to the defendant. In Styles v. State, 129 Ga. 425, 59 S.E. 249, 251, 12 Ann.Cas. 176, it was said, in the opinion prepared by Justice Atkinson: It has been held that where a juror overhears remarks prejudicial to the accused, the juror is presumed to have been prejudiced and influenced against the accused thereby. Downer v. State, 10 Ga.App. 827, 74 S.E. 301. A new trial is required where improper evidence which is harmful to the defendant is allowed over objection, where it cannot be said that such evidence did not prejudice the defendant. See Owens v. State, 118 Ga. 753, 45 S.E. 598; Johnson v. State, 128 Ga. 71, 57 S.E. 84; Brown v. State, 119 Ga. 572, 46 S.E. 833. The general character of the accused, and especially his conduct in other transactions, are irrelevant matter, unless the nature of the...
To continue reading
Request your trial