Hudson v. State

• Court: Georgia Supreme Court
• Writing for the Court: FISH, C.J.
• Citation: Hudson v. State, 153 Ga. 695, 113 S.E. 519 (Ga. 1922)
• Decision Date: 19 June 1922
• Docket Number: 2997.
• Parties: HUDSON v. STATE.

113 S.E. 519

153 Ga. 695

HUDSON v. STATE.

No. 2997.

Supreme Court of Georgia

June 19, 1922

Syllabus by the Court.

On the trial of a husband charged with a crime, conversations between him and his wife, when relevant, may be testified to by one who overheard them. Such conversations admitted in evidence in this case were relevant.

Where a mass of evidence is objected to as a whole, and some of it is competent, such objection is not well taken.

Statements of an incriminatory character by one accused of crime are admissible in evidence, if free and voluntarily made, though made to an officer while in his custody and induced by some trick, artifice, or deception.

The court did not err in admitting the evidence set out in grounds 8, 9, and 10, of the motion, over the objections made thereto by defendant's counsel; nor in refusing to grant a mistrial for the reasons alleged in grounds 8 and 9 of the motion.

Evidence of the general bad character of the defendant's wife was not admissible.

The evidence offered by the defendant, and referred to in paragraphs 8, 9, and 10 of the opinion, was not a part of the res gestæ, and was properly excluded.

Even if a misstatement of law made by counsel in the argument of a case to the jury can ever be cause for the grant of a mistrial, the language used by the solicitor general in his concluding argument to the jury, as set out in the eleventh paragraph of the opinion, was not, when considered in connection with the judge's note in approving the ground of the motion in reference to such language, cause for the grant of a mistrial or a new trial.

The instruction on the subject of reasonable doubt was not error.

No question for decision is raised in the 24th ground of the motion for new trial.

Nor was the instruction as to apparently incriminating statements of the defendant error.

The venue was proved by direct and positive evidence.

The alleged newly discovered evidence was not of such a character as would likely cause a different result should another trial be had.

The evidence authorized the verdict.

Additional Syllabus by Editorial Staff.

Insistence in motion for new trial that the evidence was inadmissible for stated reasons does not amount to an objection made to the admissibility of the evidence when offered.

Error from Superior Court, Dougherty County; R. C. Bell, Judge.

Glen M Hudson was convicted of murder, and he brings error. Affirmed.

Claude Payton, of Albany, for plaintiff in error.

B. C. Gardner, Sol. Gen., and J. D. Gardner, both of Camilla, Billie B. Bush, of Atlanta, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.

FISH C.J.

Glen M. Hudson and Bennie Hudson were jointly charged, in an indictment found in the superior court of Dougherty county, with the murder of Robert Temples and Isaiah Temples on July 12, 1921, by unlawfully and maliciously beating and wounding them with sticks and clubs and by shooting them with a pistol. Glen M. Hudson was tried separately, and found guilty as charged. He moved for a new trial, which being refused, he excepted.

The defendants were husband and wife. The deceased were respectively about nine and four years of age. They were illegitimate children of Bennie Hudson, born before she married Glen M. Hudson. He was not the father of either of them. At the time the children were killed, they were living with the defendants on a farm about three miles from the city of Albany this state. Each child was killed by a pistol shot in his head on July 12, 1921. The evidence for the state tended to show that they were killed in the morning shortly before sunrise, and that soon thereafter the defendants left the house wherein they lived, closed, except one rear door, and together drove in a wagon to Albany. Some time about 8 o'clock in the morning the children were found dead, the older boy's body in a small porch in the rear of the dwelling, and the younger one inside the house. The state submitted evidence as to many circumstances tending to connect both the defendants with the killing of the children. Glen M. Hudson will be hereinafter referred to as the defendant.

1. Error is assigned, in the motion for a new trial, on the admission of the testimony of one Shep Bruno, a witness for the state, over the objections of the defendant. This testimony was to the effect that the witness heard Mrs. Hudson say to the defendant that it seemed strange, and she could not understand why the witness, a negro, could get a job, and the defendant, a white man, could not; that the defendant replied that the reason was that Bruno had been working out there four or five years, and they knew him, but that they did not know the defendant; that Mrs. Hudson then said "one or the other of them [she or the defendant] had to go to work and get a job somewhere, because her children had to have bread and meat, and some shoes and clothes to wear, and he said he didn't have a house full of children to work himself to death for"; that on the same day the witness heard Mrs. Hudson ask a man who came by her house if he could let her have some meal, and, upon an affirmative answer, she requested the defendant to go to the man's house and get it; and that defendant went and brought back a quart and a half of meal. The objections urged against the admission of all this testimony were that it was irrelevant, and constituted a privileged communication between husband and wife. The conversations occurred on the day before the children were killed, and were admissible as circumstances tending to show the lack of interest the defendant had in the children, and the needy circumstances of the family. On the trial of a husband charged with a crime, a conversation between him and his wife, when relevant, may be testified to by one who overheard it. Knight v. State, 114 Ga. 48, 39 S.E. 928, 88 Am.St.Rep. 17; Ford v. State, 124 Ga. 793, 53 S.E. 335; Nunn v. State, 143 Ga. 451, 85 S.E. 346.

2. The sixth ground of the motion consists of more than 7 pages of typewritten matter. It relates to the testimony of the deputy sheriff, a state's witness. More than 50 questions asked on direct, cross, redirect, and recross examination, and the answers thereto, are set forth in detail; much of the testimony was competent and admissible, and much of it immaterial. The testimony was objected to in bulk, no specific objection being made to any particular portion of it. As often ruled by this court, such objection presents no question for decision.

3. In the seventh ground of the motion error is assigned upon the admission of the testimony of Denson, the deputy sheriff, a witness for the state, to the effect that he asked the defendant, while in jail, "why he didn't tell us that Mrs. Hudson said that she had killed the children, and he didn't make any answer," and further that the sheriff asked the defendant while in jail, "didn't he tell him in Macon [while in jail there] that Mrs. Hudson said she had killed the children, after they had got about halfway to town, and if he didn't say that she seemed to be very nervous; and he said she did." The witness testified that these statements were made by defendant when he was in the "condemned cell" of the jail and in the hall where the "condemned cell" was; that defendant's wife was present; that the statements were freely and voluntarily made by the defendant; and that no threats were made nor any hope held out to him by any one to induce him to make them. It appears from the witness' testimony that a dictograph had been placed in the cell wherein the defendant was confined, that he knew it was there and did not say anything except to tell his wife to "hush." The objection to the testimony was that it appeared from the evidence that the dictograph was put in the cell the day the defendant was brought back from Macon, and "that all the circumstances showed that he was being handled and his person put in different places, and settings were made, and a woman brought up there that day, and the conditions and circumstances were such that he would not exercise his free will; that anything said under those circumstances was not freely and voluntarily made." The court did not err in admitting the testimony as to statements of the defendant, which were prima facie freely and voluntarily made without the slightest hope of benefit or the remotest fear of injury; it being for the jury to finally determine, under proper instructions, whether the statements were so made. The fact that the statements may have been induced by a mere trick, artifice or deception would not render them inadmissible. Cornwall v. State, 91 Ga. 277 (4), 18 S.E. 154.

4. In the eighth ground of the motion it appears that Sheriff Tarver, a witness for the state, testified that he had a conversation with the defendant in jail at Macon, that the defendant there made "a statement freely and voluntarily, that he did not threaten him nor offer him any reward." "I told him his wife accused him." Mr. Payton, defendant's counsel, interrupting the witness, said:

"I object to conversations with his wife, any conversations between Sheriff Tarver and defendant's wife; and I further object to testimony along this line because the evidence shows he had transferred him from this county to Bibb, and there must have been some reason why he should not have remained in this county; and the fact that he was transferred from this county to Bibb county, and the fact that he was in the presence of the sheriff, brought about a set of circumstances that necessarily created in the mind of the defendant a condition of terror and fright, and any statement he might have made under such circumstances would not be free and voluntary; and we object to it for that

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