Hill v. State

• Decision Date: 06 May 1965
• Docket Number: No. 22911,22911
• Citation: 221 Ga. 65,142 S.E.2d 909
• Parties: Raymond C. HILL v. The STATE.
• Court: Georgia Supreme Court

Page 909

142 S.E.2d 909

221 Ga. 65

Raymond C. HILL v. The STATE.

No. 22911.

Supreme Court of Georgia.

May 6, 1965.

Rehearing Denied May 31, 1965.

Syllabus by the Court

1, 2. The defendant's motion to disqualify jurors on the ground that the trial judge made a prejudicial remark in their presence should have been made by a challenge to the poll and not by a challenge to the array as was done here.

3, 4. The court, after admitting certain testimony, excluded the testimony and instructed the jury to disregard it. Therefore, there is no merit in the contention that the court erred in admitting the testimony.

5. The court did not abuse its discretion in refusing to grant a mistrial.

6. The court did not err in refusing to charge the jury on the law relating to an accessory after the fact. "On the trial of an indictment charging a defendant as principal, he cannot be convicted as accessory after the fact."

7. The best evidence rule applies only to the contents of a writing. The rule does not require that chattels be introduced in evidence.

8. The language of Code Ann. § 59-705 is broad, but the trial judge still retains the discretion to limit the examination of prospective jurors to questions dealing directly with the specific case.

Joseph W. Love, Albert P. Feldman, Thomas H. Antonion, Atlanta, for plaintiff in error.

Lewis R. Slaton, Sol. Gen., William T. Boyd, Sol. Gen., William E. Spence, Carter Goode, Eugene Cook, Atty. Gen., J. P. Parham, Asst. Atty. Gen., Atlanta, for defendant in error.

ALMAND, Justice.

Raymond C. Hill was convicted of robbery by open force and violence in the Superior Court of Fulton County, and on the jury's recommendation of mercy, was sentenced to life imprisonment. His amended motion for new trial being overruled, Hill brings his case to this court for review.

The amended motion for new trial consists of the general grounds and eight special grounds. We rule only on the special grounds, the defendant having abandoned the general grounds.

1, 2. Error is assigned in these grounds because the trial court overruled defendant's oral motion to disqualify certain panels of jurors. The motion was based on a remark by the trial judge that 'there were four of five indictments pending against the accused.' The court ruled: 'Let the record show that on the call of this case the defendant's counsel, Mr. Love, asked what number case was being called and the court stated there were several numbers; at that time I asked the solicitor what number he called and he stated 85924. And let the record show that the motion is overruled.' It is insisted that the remark 'clearly placed the defendant's character in issue and was prejudicial and harmful to the defendant and deprived him of a fair and impartial trial.' This motion was properly overruled. The correct method of raising such a question would be by a challenge to the poll and not by a challenge to the array which the defendant made here. See Thompson v. State, 109 Ga. 272(2), 34 S.E. 579 and Fields v. State, 190 Ga. 642(2), 10 S.E.2d 33, the latter case involving an allegedly prejudicial statement of the solicitor general where it was held: 'The court did not err in refusing to disqualify the entire panel of jurors merely because of the statement of the Solicitor General. The proper method of objecting would have been by challenge to the poll if the jurors qualified upon their voir dire.' The trial court did not err in overruling the motion to disqualify the panels of jurors.

3, 4. Complaint is made in these grounds because the trial court allegedly admitted certain testimony over defendant's objection. In a note attached to the motion for new trial, the court states that it later sustained defendant's objection, excluded the testimony, and instructed the jury to disregard it. This being done, there is no merit in the contention that the court erred in admitting the testimony in question. Tanner v. State, 163 Ga. 121(3), 135 S.E. 917.

5. In this ground error is assigned because the trial court denied defendant's motion for a mistrial. The motion was based on the ground that the testimony of B. G. Holland, a witness for the prosecution who testified as to certain statements made by Charles William Orr, was hearsay and was highly prejudicial to the defendant. The trial court ruled out this portion of Holland's testimony and instructed the jury to disregard it. Earlier in the trial Charles William Orr had given testimony very similar to the statements attributed to him by Holland. The grant of a mistrial is "largely within the discretion of the court; and unless it is apparent that a mistrial was essential to preservation of the right of fair trial, the discretion will not be interfered with." Johnson v. State, 209 Ga. 333(6), 72 S.E.2d 291. In view of the instruction to the jury and the previous testimony of Orr, we cannot say that the trial judge abused his discretion in refusing to grant a mistrial. Withrow v. State, 136 Ga. 337(3), 71 S.E. 139.

6. In ground 6 error is assigned because the trial court denied defendant's request to charge the jury on the law relating to an accessory after the fact. It was defendant's contention that under the evidence in the case the jury might find him guilty of being an accessory after the fact to the crime of robbery by open force and violence. The trial court did not err in refusing to give the requested charge. The defendant, Raymond C. Hill, was charged in the indictment with being a principal in the crime of robbery by open force and violence and 'On the trial of an indictment charging a defendant as principal, he cannot be convicted as accessory after the fact.' McCoy v. State, 52 Ga. 287(3). See also Ivey v. State, 186 Ga. 216, 197 S.E. 322.

7. Complaint is made in ground 7 because the trial court admitted certain testimony over defendant's objection. The evidence in question...