Garrett v. State

• Decision Date: 14 April 1948
• Docket Number: 16150.
• Citation: 48 S.E.2d 377,203 Ga. 756
• Parties: GARRETT v. STATE.
• Court: Georgia Supreme Court

48 S.E.2d 377

203 Ga. 756

GARRETT v. STATE.

No. 16150.

Supreme Court of Georgia

April 14, 1948

Rehearing Denied May 14, 1948.

Second Motion for Rehearing Denied June 16, 1948.

Error from Superior Court, Towns County; Boyd Sloan, Judge.

Syllabus by the Court.

1. Before a confession can be admitted in evidence, it must prima facie appear that it was made freely and voluntarily. If there is a dispute as to whether the confession was made freely and voluntarily, that question then becomes one of fact for determination by the jury. It is only where the undisputed facts show that the confession was not freely and voluntarily made that it should be excluded from the evidence.

2. In charging the jury upon the defendant's right to make a statement, it is preferable to confine the instruction to the language of the Code, § 38-415. However, the following instruction--'Now, the defendants are allowed to make to the court and jury just such statement in their own behalf as they see fit; they are not under oath, not subject to cross-examination, and you are authorized to give to their statement just such weight and credit as you think them entitled to receive; you may believe them in whole or in part and you may believe them in preferance to the sworn testimony in the case,'- [48 S.E.2d 379] --would not, for any reason assigned, warrant the reversal of the judgment refusing a new trial.

3. The court did not err, for any reason assigned, in failing to charge the principle of law embodied in the Code, § 38-414.

4. The Code, § 38-411, declares that, 'To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury.' The charge complained of, which merely elaborated or explained this section of the code as it related to hope or fear, was in the abstract a correct statement of the law, and was not erroneous for any of the several reasons assigned.

5. Where a ground of the motions for new trial complains that a member of the jury trying the case was related within the prohibited degree to the person alleged to have been killed and upon the hearing affidavits are introduced tending to establish the sufficiency of that ground, and a counter-affidavit is introduced to the effect that no such relationship in fact existed, the judge, passing upon the motion, is the trier of the fact in controversy, and this court will not interfere with his decision thereon.

(a) A husband is related by affinity to the blood relatives of his wife, but as a consequence of marriage he is not related in any way to those persons to whom his wife is related only by affinity.

6. The evidence authorized the verdict.

Charley Garrett was jointly indicted, tried and convicted, with Jewel Eller, of the murder of Milton Menvin Maney by hitting striking and beating him with an axe. There was no recommendation of mercy. Garrett's motion for new trial based on the general and five special grounds, was overruled, and he excepted. In special ground five it is urged that a new trial should be granted because Ross Loyd, one of the jurors who convicted the movant, was disqualified because of his relationship to the deceased Maney. On a counter-showing made by the State, and over the objection 'that the affidavit did not show that the affiant was a member of the family or qualified himself as a witness or competent to prove relationship of the juror to the deceased,' the court admitted in evidence an affidavit of T. A. Garrett, in which he swore in effect that there was no relationship between the juror Loyd and the deceased Maney. In the bill of exceptions error is also assigned on the court's refusal to exclude the affidavit.

It is not contended that the evidence was insufficient to authorize the verdict of guilty, provided the alleged confession of the plaintiff in error was properly admitted in evidence, and provided the trial judge did not err in afterwards refusing to exclude it from the evidence. The alleged written confession admitted in evidence, was a plenary confession of guilt of the offense charged in the indictment. It was corroborated by proof of the corpus delicti, and by other evidence which fully substantiated the circumstances surrounding the alleged killing as set forth in the confession. Therefore it is unnecessary to set forth any of the evidence in the case, other than that portion which deals directly with the manner and circumstances under which the confession was obtained.

J. T. McKibben, an investigator for the Georgia Bureau of Investigation, and O. W. Kaiser, a notary public, were the witnesses for the State who testified as to the manner in which the confession was obtained. On direct examination McKibben testified that Charley Garrett made the written statement freely and voluntarily, after he was told that he did not have to make it, and that anything he told could be used against him in court; that the witness typed the statement from information given to him by Garrett, and after reading it over to him, he (Garrett) stated that it was a correct statement. Kaiser testified that, as notary public, he witnessed the signing of the statement; that the statement was read to Garrett and he stated that it was true; and that it was made freely and voluntarily, and without any threats or promises.

On cross-examination, McKibben testified, so far as concerns the circumstances under which the confession of the plaintiff in error was obtained, as follows: 'I was present when Charlie Garrett was arrested on the front porch of his mother's house in the night or early morning, August 27 or 28th, the same night, but prior to Eller's arrest; we had Garrett under arrest when we arrested Eller. That night we carried Garrett over to Blairsville and put him in jail; we didn't let him stay here; didn't want the two together; that is our policy. We got to Blairsville shortly after two o'clock that night, I imagine; he was placed in jail there. I next saw Garrett the next afternoon around three o'clock at the jail in Blairsville; troopers Ray and Nunnally and myself were with him; none of these troopers had seen him the night before; both were in uniform; the trooper with the sheriff when we arrested him was in uniform, regular gray uniform. I next saw Garrett, not the day following the day he was arrested, but on Thursday, August 28th, around three o'clock or a little after. These two troopers and I transferred him from the jail in Blairsville to Gainesville, Ga.; the two troopers carried Eller; I carried Garrett in the car by myself. It is about two hours ride or two hours from Blairsville, across the Blue Ridge, to Gainesville. Garrett made his confession in the office of the Hall County jail; he didn't make any until he got down there. Mr. Kaiser, a notary public down there, and the jailer were present. So far as I know, Kaiser was a stranger to Garrett, but I had known him. I don't know whether the two knew each other; I think the jailer was there in the office; he is a jailer and officer; I think a deputy sheriff; I don't think there was anyone else in the office. I wrote both the confessions. I did not ask Garrett if he had any lawyer or friend he wanted to be present before I talked with him; I asked him if he had a lawyer, I don't remember whether it was before or after; I wouldn't say I asked him before this alleged confession. Before the confession I did not ask Eller; I don't know whether I asked Garrett or not, because he was down there a day before I saw him again; I was with him about two hours going down. I don't remember whether I told him where we were going; he knew he was going to jail when he left home. I put him in the Hall County jail, about three or four stories high, about six o'clock in the afternoon. I carried him down there Thursday afternoon, and it was on Friday night about nine o'clock, I imagine, I got the confession, twenty-seven hours later; with us was Mr. Kaiser and Jailer Vandiver; I am not sure he was in there all the time, but he was around there, I remember him being there that night; he was not carrying a pistol. As to our being in the jail locked up, Garrett was out from the cell part where the cells were locked; he was in the office part; it is not locked; but it was in the jail building. I just asked Garrett to give us something about the thing to check on; I had some information about that before I had him brought down; I had the statement from Jewel Eller, but I hadn't anything from Garrett. I did not tell Garrett that Eller had confessed and laid everything on him; I told him he had told about it. I didn't tell him if he told it, it would be light on him, nor that, if he didn't tell it, he was headed for the electric chair. I talked to Garrett that afternoon on the way down, all fifty-eight miles; I was in charge of the car, I could have killed him and myself; I could have run off one of those cliffs; could have run faster; I don't know how much he was frightened. But he didn't confess on the way down; I was trying to get him to tell the truth about it, but as far as a confession, I couldn't have taken it down in the car going to Gainesville. I did not ask him if he wanted a friend or lawyer present when I talked to him; it didn't make any difference to me if anyone was present; I would prefer not to have a big crowd around; if I had not wanted anyone around, I would have taken him in the back of the jail, I didn't object to the officers being around. I didn't tell him he couldn't have any friends or anybody representing him; I didn't ask him if he wanted any. Neither Mr. Eller nor Mr. Garrett told me anything about a confession before I asked about it; it was after I asked about it. There was no hope or...