Haden v. State
| Citation | 168 S.E. 272,176 Ga. 304 |
| Decision Date | 20 January 1933 |
| Docket Number | 8830. |
| Parties | HADEN v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Granted and Judgment Adhered to Feb. 17, 1933.
Syllabus by Editorial Staff.
Statutory provision as to time for revision of jury list is merely directory, and failure to comply therewith strictly did not warrant quashing indictment, where no prejudice resulted (Pen. Code 1910, §§ 818, 816, Laws 1925, p 99).
That grand jurors were drawn during term held not cause for quashing indictment, where no prejudice resulted (Pen Code 1910, § 823).
Judge of superior court could, during Bibb county July term, call special term of grand jury which served at April term notwithstanding interval between adjournment of April term and convening of special term (Laws 1905, p. 88, § 3; Pen. Code 1910, § 796).
Indictment charging that accused feloniously made assault upon and had carnal knowledge of named female forcibly and against her will held sufficient without alleging whether female was over 14 (Pen. Code 1910, §§ 93, 94, 98; Laws 1918, pp. 259, 260, §§ 1-3).
That accused was brought into court handcuffed by sheriff held not ground for discharging jury panel, where court immediately ordered handcuffs removed (Pen. Code 1910, § 968).
In rape prosecution, evidence that two men under influence of liquor had on same night intercepted another couple in automobile and had robbed them and taken their car, and that car was the same as that abandoned by two men who robbed and assaulted prosecuting witness, held admissible to identify defendant.
Failure to instruct jury on limited purposes for which evidence of other offenses might be considered held not error, in absence of request.
Testimony that there was no inducement offered and no threats made to procure statement of accused held not objectionable as conclusion.
Instruction in rape prosecution that drunkenness, except under certain circumstances, was no excuse, held not erroneous, notwithstanding court's failure, in absence of request, to instruct jury to consider drunkenness on question of defendant's capacity to commit crime.
Instruction in rape prosecution that penetration may be proved by indirect or circumstantial evidence held not erroneous for failure to define "indirect or circumstantial evidence."
Instruction in rape prosecution that act would not be rape if female consented at any time during carnal intercourse held not erroneous as expression of opinion or as limiting time of consent.
Instruction that rape involved element of force held not erroneous on ground of failure to define force or state what amount thereof was required.
Court need not, in absence of written request, give instruction on circumstantial evidence, where conviction does not depend on circumstantial evidence entirely.
Court's statement, on jury's return to courtroom after preliminary examination as to manner of obtaining certain alleged incriminating statements, that solicitor general ought to put sheriff on stand, held not to require mistrial or new trial, as expression of court's opinion, or as putting judge in position of prosecutor.
Court's statement that grand jury charged that defendant was guilty held not to require reversal as giving jury impression concerning court's opinion.
Failure in absence of request to give instruction on presumption of innocence held not error, in view of instructions on reasonable doubt and presumption in defendant's favor.
Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.
Charles Haden was convicted of rape, and he brings error.
Affirmed.
Maurice C. Thomas and Thomas S. Felder, both of Macon, for plaintiff in error.
Chas. H. Garrett, Sol. Gen., and T. A. Wallace, both of Macon, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
Syllabus OPINION.
1. It is provided by statute that jury commissioners in the several counties created under the provisions of the Penal Code, § 813 et seq., "on the first Monday in August, or within thirty days thereafter, *** shall revise the jury-lists, as provided in this Article" (section 816 []); also that "on failure of the commissioners of any county to revise the jury-list as provided in this Article, the judge of the superior court of such county, either in term time or at chambers, shall order the revision made at such time as he may direct" (section 818). In the instant case the jury commissioners began the work of revising the jury list from which the grand jurors who returned the indictment against the defendant was drawn, and continued their work of revision from day to day for more than thirty days after the first Monday in August, and made their formal certificate when the work was completed. There was no order of court granting an extension of time or providing any other time in which the commissioners should revise the list. It was not made to appear that the failure of the commissioners to accomplish the revision on the first Monday in August or within thirty days thereafter affected the defendant injuriously. In the circumstances the provision of the statute as to the time in which the revision of the jury list should be made is to be regarded as merely directory, and the failure to comply therewith strictly will not afford cause for quashing the indictment. For statement and application of the foregoing principle, see Rafe v. State, 20 Ga. 60; Woolfolk v. State, 85 Ga. 69 (5), 11 S.E. 814; Pollard v. State, 148 Ga. 447-453, 96 S.E. 997; Rawlings v. State, 163 Ga. 406-419, 136 S.E. 448; Hulsey v. State, 172 Ga. 797 (4), 159 S.E. 270; State v. Clark, 51 W.Va. 457, 41 S.E. 204 (7); State v. Medley, 66 W.Va. 216, 66 S.E. 358, 18 Ann.Cas. 761; Thompson & Merriam on Juries, §§ 47, 145; 35 C.J. 264, § 217(b); 12 Enc. Pl. & Pr. 277; 16 R.C.L. 236, §§ 53-57. The case differs from Roff v. Calhoun, 110 Ga. 806, 36 S.E. 214, and Davis v. Arthur, 139 Ga. 74 (3), 76 S.E. 676, which did not involve the question now under consideration.
2. The Penal Code, § 823, declares that the judges of the superior courts "at the close of each term" in open court shall draw the names of grand jurors to serve at the next term, etc. Under application of the principle stated in the first division, the fact that the grand jurors were drawn during term more than one month prior to adjournment of the term was not cause for quashing the indictment.
3. In Bibb county the four regular terms of the superior court convene respectively in February, April, July, and November. It is provided in section 3 of the act of 1905 (Ga. L. 1905, p. 88): "That the judge shall only draw a grand jury for the April and November terms of said court; provided that the presiding judge, in his discretion, may require the attendance of the grand jury at the January and July terms, or either of them, if the business of the court should require it; but the duties of said grand jury shall not require them to perform any other service than they shall be by the presiding judge especially charged with." At the February term a grand jury was drawn to serve at the April term. That term extended to July 14, when it was adjourned, the grand jury having been discharged four days previously. The July term ensued for which no grand jury was provided. The term could have been continued until five days before the beginning of the November term. It was adjourned, however, on September 2. During that term the judge, on August 29, called the special term to convene on September 3, and recalled to serve at such special term the grand jury which had served and been discharged at the April term. The indictment against the defendant was returned by this grand jury serving at the special term. Held: (a) It is declared in the Penal Code, § 796, that the judges of the superior courts "are authorized to hold special terms of said courts for the trial of criminals, or for the disposition of civil business, either or both, in any county of their circuits, at discretion, and to compel the attendance of grand or petit jurors, either of a previous term, or to draw new jurors for the same, according to the laws now in force." This provision of law authorized the judge, in his discretion, to call the special term, and to compel the attendance of the grand jury that served at the April term, notwithstanding it was called during the July term and the April term did not "immediately precede" the special term. (b) The grand jury serving at such special term was not an illegal body, nor was the indictment void upon either of the grounds stated.
4. For reasons stated in the first division, similar grounds of attack made in the challenge to the array of traverse jurors show no cause for discharging the panel.
(a) Nor was there merit in the second ground of attack made in the challenge to the array of traverse jurors which in effect complains that the array of jurors was illegal because it was drawn from the jury box as revised on the 9th day of October, 1929, whereas the defendant was entitled to an array of jurors that had been drawn from the jury box as revised on the 13th day of October, 1931.
5. The indictment in this case charged that the accused "did then and there unlawfully and with force and arms feloniously make an assault upon and have carnal knowledge of" a named female "forcibly and against her will." This indictment was sufficient, without alleging whether the female was under or over the age of 14 years, and a demurrer to the indictment based upon the ground that it failed to state her age was properly overruled. ATKINSON, J., dissents as to this ruling; his view being as follows: Section 93 of the Penal...
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