Mcrae v. State, 10621.

• Decision Date: 12 September 1935
• Docket Number: No. 10621.,10621.
• Citation: 181 Ga. 68,181 S.E. 571
• Parties: McRAE. v. STATE.
• Court: Georgia Supreme Court

181 Ga. 68

181 S.E. 571

McRAE.

v.STATE.

No. 10621.

Supreme Court of Georgia.

Sept. 12, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Cherokee County; J. H. Hawkins, Judge.

G.P. McRae was convicted of murder, and he brings error.

Affirmed.

Frank A. Bowers, James R. Venable, and Robert McGinley, all of Atlanta, for plaintiff in error.

H. G. Vandiviere, Sol. Gen., and A. J. Henderson, both of Canton, M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.

Syllabus Opinion by the Court.

PER CURIAM.

After careful consideration of the motion for a new trial, the court is unanimously of the opinion that no reason appears why the judgment refusing a new trial should be reversed on the general grounds of the motion, or, in so far as sufficient to raise a question for decision, on the special grounds other than ground 7. The majority of this court are of the opinion that ground 7, which complains that the judge in his charge intimated or expressed an opinion in its nature interfering with the unqualified right of the jury to determine for itself, either with or without reason, whether the defendant will suffer life imprisonment instead of being executed, is without merit.

Judgment affirmed.

All the Justices concur, except RUSSELL, C. J., who dissents.

RUSSELL, Chief Justice (dissenting).

It is unnecessary to cite the numerous decisions of this court which have announced, and several times forcibly reiterated, the proposition that it is the right of the jury (after having determined that the defendant is guilty of murder) to say, by their recommendation of life imprisonment or to the mercy of the court (if either be stated in their verdict), that the defendant not be electrocuted. Any intimation by the court that in the slightest degree tends to prevent the jury from exercising their right to substitute life imprisonment for capital punishment impinges upon the unqualified right of the jury to relieve the accused from a sentence of death and to allow him at least to retain his life. Under all the previous decisions of this court, the trial court is to leave the jury to exercise its prerogative without even the slightest suggestion of any reason which might tend in any degree to induce the jury to refuse the recommendation. In my opinion, when the judge told the jury that "in all cases it is the right and province of the jury, in the event they convict the defendant, to recommend that he be imprisoned for life, or...