Glover v. State
| Decision Date | 19 December 1907 |
| Citation | 59 S.E. 816,129 Ga. 717 |
| Parties | GLOVER v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
"The affidavits of jurors may be taken to sustain, but not to impeach their verdict."
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2392-2395.]
That the trial judge after hearing a motion for a change of venue indicated his purpose to sustain it, but subsequently, upon further consideration of the matter, and without having heard any further evidence, passed an order overruling the motion is not cause for a new trial.
The fact that the trial judge, during the progress of the trial stated to counsel, in the presence of the jury, that a named witness, who had testified for the defense upon the question of the sanity of the accused at the time of the commission of the alleged crime, did not claim to be an expert in such a case, or to have any peculiar knowledge upon the subject, is not cause for a new trial, when it is not alleged that such statement of the judge was not correct.
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2182.]
It was not error to permit counsel for the state, over objection, to ask a witness for the defense if, in his opinion, certain circumstances which he had assigned as his reason for believing the accused to be of unsound mind were in themselves sufficient to indicate that he did not know that it was wrong "to go and shoot a helpless woman down in the mill, and keep pumping lead into her until she was dead," although the witness had not testified that the accused did this, and even though the court had refused to allow counsel for the defense to propound a similar question to a state's witness.
It is well settled that a nonexpert witness may give his opinion as to the sanity of another person, based upon his acquaintance with him, and the manner, appearance, and conduct of such person during the time that the witness has known him.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1045.]
Where the court charged the jury that if it appeared from the evidence that the accused, at the time he slew the deceased, knew the difference between right and wrong, but did not have power of mind and will sufficient to keep him from killing her, he would not be guilty of murder; and then immediately gave the general rule that the insanity which the law recognizes as an excuse for crime must be such as dethrones reason and incapacitates one for distinguishing between right and wrong, an assignment of error, in a motion for a new trial, that these instructions were conflicting, is without merit.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1961-1968.]
The ground of the motion complaining that the judge, during the progress of the trial, intimated "his opinion of the case," was without merit, as in none of his remarks, quoted in this ground, which were made in connection with various rulings, or in colloquies with counsel, did he intimate his opinion of the case.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1731.]
It is not cause for a new trial that the judge allowed a given question to be propounded to a witness, when it does not appear what objection, if any, was made to the question, nor what answer, if any, the witness made thereto.
The question whether a witness offered as an expert is qualified to give his opinion upon a given subject under investigation is one for the court, and not for the witness. Hence the mere fact that the witness in his testimony may disclaim to be an expert is no reason for refusing to allow him to testify as one.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1070.]
The fact that the trial judge, upon objection being made to the competency of a witness offered as an expert, expressed his opinion as to the sufficiency of the preliminary testimony of the witness to show that he was one, is not cause for a new trial.
Grounds of a motion for a new trial not referred to in the brief of counsel for plaintiff in error are treated as abandoned.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3012.]
The evidence warranted the verdict, and the court did not err in refusing to grant a new trial.
Error from Superior Court, Richmond county; H. C. Hammond, Judge.
Arthur P. Glover was convicted of murder, and he brings error. Affirmed.
See 57 S.E. 101.
A. L. Franklin and C. A. Picquet, for plaintiff in error.
J. S. Reynolds, Sol. Gen., Boykin Wright, and Jno. C. Hart, Atty. Gen., for the State.
Arthur P. Glover was convicted of murder, and, upon his motion for a new trial being overruled, he excepted.
1. Two of the grounds of the motion complained of the alleged misconduct of the jury which returned the verdict. The only evidence in support of these grounds was the affidavit of one of the jurors, which was contradicted by the affidavits of all the other jurors. It is only necessary in disposing of the grounds to quote the language of section 5338 of the Civil Code of 1895: "The affidavits of jurors may be taken to sustain, but not to impeach their verdict."
2. Another ground of the motion was that after 6 jurors had been selected to try the case, and 84 had gone off for cause, counsel for the accused renewed their motion for a change of venue, and "the court granted the same, stating to the counsel for the defendant and state to agree upon a county; if not, the court would select a county"; the judge further stating: "I will let the case go over until to-morrow morning before I take action in that matter." Counsel for the state and counsel for the accused agreed upon another county before the court convened the next morning, and counsel for the accused asked the court to grant an order changing the venue to the county thus agreed upon. The court refused the motion, and ordered the case to proceed. The assignment of error is "that the court had entertained serious doubt the afternoon before that a fair and impartial trial could be had in Richmond county, and no evidence had been introduced in the presence of defendant's counsel to remove said doubt or produce further evidence." This ground is wholly without merit. The court did not finally pass upon the motion for a change of venue until the morning after it was made, and it was certainly not erroneous to then decide the question presented without hearing evidence to remove any doubt that the court might have entertained on the subject the afternoon before. The ruling of the judge refusing to grant the motion for a change of venue, being made under the circumstances stated, clearly indicates that whatever opinion he may have at first entertained as to the merits of this motion, under the evidence submitted, he, upon a further and fuller consideration of the question, was of opinion that a case for a change of venue had not been made out. The question whether the judge was right or wrong in this conclusion does not depend upon his mental attitude in reference to this question on the afternoon before he really passed upon it, but upon a consideration of the evidence which he deemed insufficient to sustain the motion.
3. Complaint was made that the court intimated to the jury what had been proven in the case by saying in their presence that Dr. Wade, a witness for the accused, did not in his testimony claim "to be an expert on these cases [cases involving the question of insanity], or to have any peculiar knowledge on that subject, yet he was permitted to testify, not only to his opinion derived from facts within his own knowledge, but there was also propounded a very lengthy and comprehensive hypothetical question by counsel for the defendant." It is clear that the judge did not in this statement intimate to the jury what had been proven in the case. There was, however, a positive statement by the judge that the witness referred to had not, in his testimony, "claimed to be an expert in these cases, or to have any peculiar knowledge on the subject," and, unless this statement by the judge was incorrect, the accused had no cause for complaint. The matter would be different if the judge had stated that the witness had not been shown by the evidence to be an expert in insanity cases, for he would then have been expressing an opinion upon the evidence; but, when he merely stated that the witness had not claimed-that is, had not testified-that he was an expert in such cases, he simply undertook to state a fact, and, if he stated it correctly, no error was committed.
A statement by the court that a witness said a certain thing, or did not say it, is not, in a legal sense, an expression of opinion as to the evidence. Williams & Co. v. Hart, 65 Ga. 201 (5); Wiggins v. State, 80 Ga. 468, 5 S.E. 503. Of course, the statement by the court that the witness had been permitted to testify to his opinion derived from facts within his own knowledge, and that a lengthy hypothetical question had been propounded to him by counsel for the defendant, was not an expression of opinion upon the evidence.
4. There was no merit in the complaint that counsel for the state was permitted, over the objection of the accused, to ask, on cross-examination of a witness for the defense, if in the opinion of the witness, certain circumstances which he had assigned as his reason for believing that the accused was of unsound mind were of themselves sufficient to indicate that the accused did not know it was wrong "to go and shoot a helpless woman down in the mill, and keep pumping lead into her until she was dead." The fact that the witness had said nothing about the accused so shooting the woman did not render the question inadmissible; nor was the...
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