Harris v. State

• Decision Date: 21 November 1940
• Docket Number: 13505.
• Citation: 12 S.E.2d 64,191 Ga. 243
• Parties: HARRIS v. STATE.
• Court: Georgia Supreme Court

12 S.E.2d 64

191 Ga. 243

HARRIS v. STATE.

No. 13505.

Supreme Court of Georgia

November 21, 1940

[Copyrighted Material Omitted]

Syllabus by the Court.

1. An allegation that for the grand jury of Warren County to pass upon a crime committed in Glascock County would violate stated provisions of the State and Federal constitutions, and that an act (Ga.L.1922, pp. 193-195 Code 1933, § 59-501 et seq.) violated the same constitutional provisions, presents no question for determination, since it fails to point out wherein there is conflict with the constitution.

2. While by the Code, § 59-506, the sheriff and clerk of the county in which the crime was committed are 'qualified and authorized' to perform the duties of such offices upon the trial of the case in another county on a change of vanue, this statute does not deprive the sheriff and clerk of the county of the trial of their right to perform their respective duties in such case. Such officers of both counties are authorized and qualified to perform such duties.

3. The requirements that jury commissioners take an oath before the ordinary, that such oath be recorded on the minutes of the ordinary, and that a jury list be certified by the commissioners to the clerk, are directory. Where it appears that the oath was administered to the commissioners by the clerk of the superior court and was not recorded, and that the jury list was not certified, but that each commissioner had signed his name thereon, and that it was recognized as the list prepared by the commissioners, a ground of the challenge to the array based upon these facts was without merit.

4. Though a sheriff attempt to apprehend those who committed a crime in another county from which the case is transferred on a change of venue to his county, yet where the evidence shows that the sheriff has no pecuniary interest therein, he is not disqualified to perform the duties of sheriff in connection with the grand jury investigation of the case.

5. Where a plea in abatement recited that all the grounds thereof had been previously pleaded in a challenge to the array, it was properly dismissed on motion of the solicitor general.

6. For the reasons stated in division 6 of the opinion, the indictment was not subject to any of the grounds of the demurrer.

7. The service of jurors at an adjourned term of court is governed by the Code, § 24-3009, and the provisions of § 59-712, have no application to such jurors. It appearing from the orders of the court that the court had been legally adjourned to the dates specified therein, the jurors in the present case were serving at an adjourned term.

8. When a challenge to the array is made, the judge, and not the jury, shall determine the sufficiency of such challenge. Although a jury was stricken for the trial of the challenge, rulings denying a request of defendant for twenty strikes, and allowing each party only six strikes, and directing a verdict against the challenge, were not erroneous or harmful to the defendant, since the judge after all legally determined the sufficiency of the challenge.

9. A non-expert witness is authorized to testify as to his opinion, where he states the facts upon which the opinion is based.

10. A witness can base his testimony upon a writing which he did not make, where he testifies that it was made in his presence and at his direction, and is true.

11. It was not error to allow a witness to state facts and from them identify a pocketbook, and to admit such pocketbook in evidence after such identification. These questions are controlled by the ruling in headnote 9.

12. The question of jurisdiction is one for determination by the court, and not for the jury.

13. It is not error to refuse a request to charge, where the substance of such request is fully covered in the general charge to the jury.

14. Where the charge fully covers the subject of reasonable doubt, it is not error to fail to charge that it is the policy of the law that it is better that ninety-nine guilty persons should escape than that one innocent person should be convicted. There is no such policy of the law. The law seeks to convict all guilty persons, and to acquit all innocent ones.

15. Where there is no evidence of confession, it is not error to refuse a request to charge on that subject.

16. Complaints that the court should not have charged that robbery by intimidation was not involved, and that he should have charged on that subject, are controlled adversely to complainant by the ruling in division 6.

17. The charge that if there was no conspiracy, or if the defendant did not participate therein, or if what was done was not alleged in the indictment, then anything done by another person could not be binding upon the defendant, does not eliminate the fact that the defendant would not be bound by acts of any other person if such person was not a party to the alleged conspiracy.

18. A manifest verbal inaccuracy in the charge, where the word 'not' was improperly used, which could not have confused or misled the jury, because of the explicit instructions properly stated on the same subject just before the inaccurate statement, is not reversible error.

19. Notwithstanding the act of February 16, 1938 (Ga.L.1937-1938, Ex.Sess., p. 326), the jury during the time that act was in force had the right, under the Code, § 26- 2502, as amended by the act of 1937 (Ga.L.1937, p. 490), to add to a verdict convicting the defendant of the offense of robbery by force both the recommendations of 'mercy' and punishment of from four to twenty years. It was error in the present case to instruct the jury that they were not authorized to recommend punishment of from four to twenty years.

20. Under the ruling in division 6, it was not error for the court to fail to instruct the jury as to the punishment for the offense of robbery by intimidation.

21. The evidence, at best, only tended to raise a suspicion of the guilt of the defendant, and was not sufficient to support a conviction of the offense of which he was charged. The court erred in overruling the motion for a new trial.

Hardwick Harris was arrested under a warrant charging him with being an accessory before the fact to robbery committed in Glascock County. The superior court of that county convened for the purpose of having the grand jury investigate the charge. At the request of the defendant the grand jurors were purged as to relationship, and by this purge it was revealed that only sixteen grand jurors out of the entire grand-jury box were qualified. On motion of the State, the venue for the investigation of the case was transferred to a grand jury in Warren County. Before the grand jury of Warren County was impaneled, the defendant presented a written challenge to the array of the grand jurors. To certain portions of this challenge the State's demurrers were sustained; and after hearing evidence on other portions, the challenge was overruled. The defendant excepted pendente lite to these rulings, and error is assigned thereon in the bill of exceptions. Upon the return of an indictment charging the defendant with being an accessory before the fact to robbery by force, the defendant filed a plea in abatement, which recited that the grounds thereof had been previously urged in a challenge to the array of grand jurors. The court dismissed this plea, and error is now assigned on exceptions pendente lite to this ruling. The defendant's demurrer to the indictment was overruled, and error is assigned on this ruling. A challenge to the array of the trial jurors was filed, and the issue made by this challenge was submitted to a jury, in the selection of which both the State and the defendant were allowed six strikes. After hearing evidence, the judge directed a verdict against the challenge to the array. Error was assigned in exceptions pendente lite to all rulings made on this challenge to the array, and the bill of exceptions assigns error thereon. Upon the trial the State produced evidence showing the conviction of two principals. The evidence against this defendant showed that he was in business with two of his brothers, one of whom had been convicted as a principal, and that before the commission of the crime the defendant, his brothers, and another principal, Davis, had been seen at their place of business engaged in conversation; but this evidence failed to disclose the subject of the conversation. It was shown that the defendant sought to hire a witness to give testimony favorable to his brother when he was on trial as a principal, and that he made an attempt to find a pistol which his brother while on trial had told him was at a certain place. The jury returned a verdict convicting the defendant and recommending mercy; whereupon he was sentenced by the court to serve the remainder of his life in the penitentiary. A motion for new trial was overruled, and the defendant excepted.

L. D. McGregor, of Warrenton, and Randall Evans, Jr., Jack D. Evans, and James R. Evans, all of Thomson, for plaintiff in error.

J. Cecil Davis, Sol. Gen., of Warrenton, C. E. Sutton, of Washington, Ellis G. Arnall, Atty. Gen., E. J. Clower, Asst. Atty. Gen., and C. E. Gregory, Jr., of Decatur, for defendant in error.

DUCKWORTH, Justice.

1. The challenge to the array of the grand jurors was based upon a number of grounds. The first ground alleged that for the jury of Warren County to pass upon a crime committed in Glascock County would violate the fifth and sixth amendments to the constitution of the United States (Code, §§ 1-805, 1-806), as well as article 1, section 1, paragraphs 1, 2, 3, 4, 5, of the constitution of Georgia (Code, §§ 2-101 [12 S.E.2d 69] through 2-105). It also alleged that Ga.L.1922, pp. 193-195 Code 1933, § 59-501 et seq.,...