Hall v. State
| Decision Date | 12 November 1913 |
| Citation | 80 S.E. 307,141 Ga. 7 |
| Parties | HALL v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The discretion of a trial judge, who passes upon the alleged prejudice and bias of a juror from conflicting evidence on a motion for new trial, will not be interfered with, unless it is manifestly abused. No abuse of discretion appears in this case.
It is not cause for a new trial that, pending deliberation by the jury on a trial for murder, they were placed in a room adjoining the rear of the courtroom, where the walls were not plastered, but were covered with laths, through the spaces of which could be seen persons in the jury room and the courtroom, where it appears from the record that the two attending bailiffs were instructed by the court not to allow any communication with the jury by any one, which order was strictly obeyed, and no communication was had with any one by the jury.
Motions for new trial, based on newly discovered evidence, are addressed largely to the discretion of the trial judge; and this court will not reverse his decision refusing a new trial on such ground, unless it is abused. No such abuse of discretion appears in this case.
It is not error to refuse a written request to charge, where the charge requested is substantially given in the general charge.
It was not error for the court to refuse to give in charge to the jury the requested instruction set forth in the fifth division of the opinion.
For the reasons stated in the sixth division of the opinion, it was not error to refuse to instruct the jury: "Where the husband is on trial for the offense of murder, his wife is an incompetent witness, and cannot testify in his favor notwithstanding the fact that other witnesses are allowed to testify to acts and sayings of the wife of the defendant on trial."
On the trial of one accused of murder, it was not error to refuse to allow counsel for the defendant to ask a witness, as original evidence, "Is it true that Mr. I. B. Hall [the defendant] went over to Mr. Bennett's and phoned down for the sheriff?"
It was not error for the court to direct the witness to answer the questions set out in the eighth division of the opinion.
It is the duty of the judge to suppress disorder during the trial of the case, and, where necessary, to rebuke and punish those causing it, on his own motion. But where in such a case the court rebuked and punished the person or persons causing the impropriety, and no objection was made to the disorder pending the trial, by the defendant or his counsel, and no motion was made to declare a mistrial by reason thereof, and no ruling was invoked from the court with reference thereto it is not cause for a new trial that the court did not of his own motion declare a mistrial.
The verdict is supported by the evidence.
Error from Superior Court, Tift County; W. E. Thomas, Judge.
I. B Hall was convicted of murder, and brings error. Affirmed.
Fulwood & Skeen and R. D. Smith, all of Tifton, and R. A. Hendricks, of Nashville, for plaintiff in error.
J. A. Wilkes, Sol. Gen., of Moultrie, and T. S. Felder, Atty. Gen., for the State.
The defendant, I. B. Hall, was convicted of murder, without recommendation. He made a motion for new trial, which was overruled, and he excepted.
1. The first and second grounds of the motion for new trial complain that two of the jurors who served in the trial of the case, and who returned a verdict of guilty against the defendant, were not fair and impartial, but were, on the contrary, prejudiced against the defendant prior to and at the time of the trial, and at the time they qualified as jurors, and during the time they deliberated as such in the case. As tending to show the bias and prejudice of one of the two jurors, it was alleged that he expressed the opinion, in the presence of M. A. Howard, that the defendant ought to be hung; and in the presence of R. G. Coarsey, that the defendant ought to be lynched; and in the presence of J. P. Davis, that he hoped that they would not get him on the jury, for his mind was already made up; and in the presence of G. W. Whittington, that he never had any use for the defendant, and was willing to join in a crowd to lynch him; and in the presence of W. G. Gilstrap, that he just wanted to get on the jury so that he could hang the defendant. It was insisted that the other juror was likewise biased and prejudiced; and, as evidence tending to show it, that he went to the house where the tragedy occurred, to console and sympathize with the wife and children of the deceased, and sat up with the corpse of the deceased, and while doing so declared, in the presence of G. W. Whittington, that the defendant ought to be lynched that very night. These grounds of the motion were supported by the affidavits of those purporting to have heard the remarks attributed to the jurors, and of witnesses supporting the good character of the defendant's witnesses. The state submitted the affidavits of the two jurors attacked, denying each and every allegation made against them, and averring that their minds were perfectly impartial between the state and the accused. There were many affidavits supporting the general good character of the two jurors attacked. Four witnesses, who were present with the juror Davis on the night that the latter sat up with the corpse of Dennis W. Hall, the deceased, made affidavits that no such statement was made by the juror during the night in the presence of G. W. Whittington, nor in their presence, nor in the presence of any one in their knowledge. It is well settled in this state that the trial judge is the trior as to the competency and disqualification of the jurors under the evidence, and that his discretion in refusing a new trial because of the alleged disqualification of a juror on account of bias and prejudice will not be disturbed, unless it is manifestly abused. We have examined the evidence upon the question, and it does not appear that there was any abuse of discretion on the part of the trial judge in refusing to grant a new trial on this ground. Ray v. State, 15 Ga. 223; Costly v. State, 19 Ga. 614 (2); Buchanan v. State, 24 Ga. 286 (2); Brinkley v. State, 58 Ga. 296 (3); Durham v. State, 70 Ga. 265 (12); Vann v. State, 83 Ga. 46 (15), 58, 9 S.E. 945; Hill v. State, 91 Ga. 154, 16 S.E. 976; Allen v. State, 102 Ga. 619, 29 S.E. 470; Huff v. State, 104 Ga. 521 (7), 524, 30 S.E. 808; Carter v. State, 106 Ga. 372, 32 S.E. 345, 71 Am.St.Rep. 262; Hackett v. State, 108 Ga. 40, 33 S.E. 842; Roberts v. State, 110 Ga. 253, 34 S.E. 203; Bowdoin v. State, 113 Ga. 1150, 39 S.E. 478; Jones v. State, 117 Ga. 710, 44 S.E. 877; King v. State, 119 Ga. 427, 46 S.E. 633; Cox v. State, 124 Ga. 95, 52 S.E. 150; McCrimmon v. State, 126 Ga. 560, 55 S.E. 481; McLeod v. State, 128 Ga. 18, 57 S.E. 83; Crawford v. State, 128 Ga. 30, 57 S.E. 94; McNaughton v. State, 136 Ga. 600, 71 S.E. 1038; Jefferson v. State, 137 Ga. 382, 73 S.E. 499; Embry v. State, 138 Ga. 464, 75 S.E. 604.
2. The third ground of the motion complains because, after the case was submitted, the jury were carried to an improper place to deliberate, in that a large crowd remained in the courtroom at the rear of which existed an open closet, in which a large section of the wall had not been plastered, there being nothing but lathing, with large spaces between, through which, not only outside conversation in the courtroom could be easily heard, but direct communication could be had by the jury with persons in the courtroom, orally, by sight, and in writing, on account of which this defendant did not have that fair and impartial trial to which the law entitled him. In a note to this paragraph of the motion the presiding judge certified that the jury was taken, under instructions, from the courtroom to the jury room, where the juries were always carried, and where such juries have been carried since the creation of Tift county, the new courthouse being in course of construction, and that he could not certify that the conversations in the courtroom could be easily heard in the jury room, nor that direct communication could be had with persons in the jury room orally, by signs, or in writing, on account of the conditions. The two sworn bailiffs who attended the jury in this case testified that no one tried to communicate with the jury in any manner whatever; and that had any one done so they would have known about it; that the jury was absolutely "under guard at all times," and that while deliberating in the jury room, one of the deponents guarded the door, and the other kept watch around the jury room on the outside to see that no one came anywhere about the jury room; and that no person entered the closet to their knowledge, and could not have entered without their knowledge; and that the conduct of the jury was in accordance with the instructions of the court that the jury were never to communicate with any one without the permission of the court. There is nothing in the motion, or otherwise, showing affirmatively that there was any communication between the jury or any member of it and those on the outside of the jury room during the consideration of the case; and, in view of the certificate of the presiding judge, and the affidavits of the attending bailiffs, we think the court did not err in refusing a new trial on this ground of the motion. It nowhere appears that the...
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