Harris v. State

• Decision Date: 10 September 1939
• Docket Number: No. 12930.,12930.
• Citation: 4 S.E.2d 651
• Parties: HARRIS. v. STATE.
• Court: Georgia Supreme Court

4 S.E.2d 651

HARRIS.

v.STATE.

No. 12930.

Supreme Court of Georgia.

Sept. 10, 1939.

Syllabus by the Court.

1. The opinion of a witness is not admissible as evidence when all the facts and circumstances are capable of being clearly detailed and described, so that the jurors may be able readily to form their own conclusions therefrom.

2. Where it appears that a juror is related within the prohibited degree to the prosecutor, the law declares the disqualification; and where such relation is unknown to the accused until after the verdict, a new trial will be granted.

3. The court did not err in instructing the jury on the subject of conspiracy.

4. Grounds 3, 7, and 8 of the motion for new trial, complaining of improper argument of counsel and of the disqualification of a juror because of alleged bias, do not require review, as, in the event of another trial, these questions are not likely to arise.

Error from Superior Court, Glascock County; C. J. Perryman, Judge.

John Sherman Harris was convicted of murder, and he brings error.

Reversed.

M. C. Barwick and J. Roy McCracken, both of Louisville, for plaintiff in error.

J. Cecil Davis, Sol. Gen., of Warrenton, Clement E. Sutton, of Washington, Ellis G. Arnall, Atty. Gen, E. J. Clower, Asst. Atty. Gen, and C. E. Gregory, Jr., of Atlanta, for the State.

REID, Chief Justice.

John Sherman Harris was convicted of the murder of Clelian Chalker, without a recommendation of mercy. His motion for a new trial was overruled. While Harris alone was indicted, the State contended that a conspiracy existed between him and another person, who, in the record, is described as a mysterious stranger. The State depended for the conviction solely upon circumstantial evidence. In brief, it appears that early on the day of the homicide, an unidentified person appeared at the home of the defendant. During the day he went hunting with one of the defendant's employees. The defendant arrived at Chalker's store in Gibson about nine o'clock in the evening where, with others, he remained until about ten o'clock, when Chalker, after placing the day's cash receipts in his pocket, closed the store, entered his automobile, and left for home. The defendant thereupon entered a nearby cafe, where he remained for a few minutes. He left alone. Within fifteen to twenty minutes he returned to the cafe and stated to the sheriff that while on his way home he discovered that some one was attempting to rob Chalker. Whereupon the defendant, the sheriff, the town marshal and another returned to the scene of the supposed robbery, which was at a point on the highway about one and a half miles from Gibson, and at a point about three hundred yards from the defendant's home. In the distance a person with a flashlight was approaching. When he came within about twenty-five yards of the highway he turned and fled in the direction of the defendant's home. The marshal shot twice at the fleeing person, and, without success, undertook to capture him. Chalker's dead body was found about forty yards from the highway and about two hundred and fifty yards from where his, Chalker's, car was found. Some boys in a house near the highway heard a shot during the evening, and, on looking toward the highway, saw two automobiles. Later they heard two shots and saw two automobiles near the same point on the highway. Later in the night the defendant went home, where he was overhead by a colored girl (who testified that she heard some one groaning on the back porch) to ask his mother as to what he should do about the stranger. She replied that he should send him away. In his statement to the jury the defendant said that the stranger came to see him about making liquor; that he did not ask his mother about removing the stranger, but he did ask her about that "stuff, " meaning liquor, which he had stored on the place, and that he did not have any connection with the murder of Chalker.

1. The first ground of the amendment to the motion for a new trial complains that the court erred in admitting the opinion or conclusion of the sheriff, who, over objection, was permitted to testify: "If Mr. Harris [the defendant] had come straight to me and found me, and then I did what I have detailed to the jury, and we went back out there with the same speed, I don't think the man out there would have time to get Mr. Chalker out of the automobile and let him stay in the ditch long enough for blood to have run so as to leave a place about the size of a saucer, and then dragged him forty or fifty feet and leave him there long enough for a spot of blood about the size of a saucer to accumulate, and then have dragged him to where the body was found, and then have gotten in the automobile and turned it around and driven the automobile some 300 yards and then hide behind the house before I got there in Mr. Harris' automobile." The attack made in this ground must be sustained, because the witness, as to a vital matter, was permitted to enter the domain of the jury. All the facts and circumstances were detailed by the witness, and it was the right and duty of the jury to form its own conclusions, uninfluenced by the opinion of the witness. Although the opinion of a witness as to a fact is admissible where it is impossible to detail the circumstances which lead him to a particular conclusion, or it is impossible to give the jury sufficient data for them to make a conclusion, and it is permissible for a witness, after the facts and circumstances upon which his conclusion is drawn are stated, to given an opinion, a witness cannot state an opinion or conclusion where the data or facts are such that the jury can make its own calculations or conclusions. Allison v. Wall, 121 Ga. 822, 827, 49 S.E. 831; Pride v. State, 133 Ga. 438, 66 S.E. 259; Clifton v. State, 187 Ga. 502, 2 S.E.2d 102; Code, § 38-1708. As stated by the court in the Allison, case, supra [121 Ga. 822, 49 S.E. 833], "It was not competent for a witness to give his opinion as to what was a reasonable time within which the trees should have been boxed and the timber cut. * * * So, too, there might be cases in which it would be proper foropinion evidence to be introduced as to what would be a reasonable time for the performance of a given act. But in such instances its admissibility would grow out of the peculiar facts, and result from the inability of the witness to give the data or to detail the circumstances on which he based his conclusion, and also from the impossibility of persons unfamiliar with the special business of making the calculation. But in the present case there was no difficulty in the jury making the proper calculation as well as an expert, if they were furnished with the proper data."

The opinion of a witness is not admissible as evidence when all the facts and circumstances are capable of being clearly detailed and described so that the jurors may be able readily to form a conclusion therefrom. Mayor &c. of Macon v. Humphries, 122 Ga. 800(2), 50 S.E. 986; Dowdy v. Ga. R. Co, 88 Ga. 726, 16 S.E. 62; Ford v. Kennedy, 64 Ga. 537; Howell v. Howell, 59 Ga. 145; Marshall v. Pierce, 136 Ga. 543(3), 71 S.E. 893; Peterson v. State, 47 Ga. 524, 529. The sheriff was permitted to give as his opinion or conclusion that sufficient time did not elapse, between the time the defendant left the scene of the murder and his return thereto, to enable "the man out there" to move the body and the automobile of the deceased as it appeared to have been moved. The effect of the sheriff's testimony is to say, in view of the facts and circumstances as outlined, that in his opinion the defendant either entered into a conspiracy with a third person to kill the deceased or aided and abetted him before and after the homicide. All of these were matters about which the facts had been given, and the jury was fully capable of drawing its own conclusion. The admission of the sheriff's conclusion or opinion was harmful error, especially as the guilt of the defendant depended solely upon circumstantial evidence.

2. Grounds 5 and 6 of the motion will be treated together. The movant assigns error because one of the trial jurors, Grover May, was related by consanguinity and affinity within the sixth degree to Elias Daniel and his wife, each of whom contributed to a fund to prosecute movant and to apprehend a mysterious stranger alleged by the State to be connected with movant in the murder of Clelian Chalker; that juror May was disqualified by relationship, being related within the sixth degree to Olin Kent, who contributed to a fund to aid in the investigation of the murder and to apprehend a mysterious man alleged to be connected in the murder with movant; that at the time of the trial movant and his counsel were unaware of the relationship and of the fact that the Daniels and Kent were volunteer prosecutors; that they sought at the trial to discover relationship and contributors, but failed to learn of such facts until after the trial and conviction. Ground 6 complains because one of the trial jurors G. M. Walden was disqualified, as he was related to J. A. Williams within the sixth degree; that Williams contributed to a fund to apprehend and prosecute a mysterious man alleged to be connected with movant in the murder, and therefore was a volunteer prosecutor; that, although diligent, mova...