Merritt v. State

• Decision Date: 15 December 1921
• Docket Number: 2596.
• Citation: 110 S.E. 160,152 Ga. 405
• Parties: MERRITT v. STATE.
• Court: Georgia Supreme Court

110 S.E. 160

152 Ga. 405

MERRITT v. STATE.

No. 2596.

Supreme Court of Georgia

December 15, 1921

Syllabus by the Court.

The court instructed the jury as follows: "The reasonable doubt which the law recognizes and gives the defendant the benefit of, where it exists, is not a vague, indefinite, or capricious doubt; but is such a doubt as arises from the evidence, or want of evidence, and causes your minds to be halting, hesitating, unsatisfied, and refusing to reach a conclusion that is satisfactory to you." This charge was not erroneous, as alleged in the motion for a new trial, on the grounds: (a) That it "resulted in an intimation of OPINION that in the case at bar no doubt existed, the interpolation of the words 'where it exists' conveying the impression that the court was of the opinion that it did not exist in the trial of the case at bar" (b) that it "was confusing and misleading to the jury trying the case, and, being incorporated in the definition of a reasonable doubt, destroyed the effect of such definition and led the jury to believe that the existence of such doubt must be first affirmatively established in some manner before the defendant should be given the benefit of it."

The court instructed the jury: "The defendant in this case as in all criminal cases, has the right to make to the court and jury such statement in the case as he may deem proper in his own defense. That statement is not made under oath, and shall have just such weight and credit as the jury may think proper to give it. They may believe the statement in preference to the sworn testimony in the case; and, if they see fit to do so, they may disregard it entirely." This charge was not erroneous on the alleged grounds: (a) That "it served to discredit the statement of the defendant to the jury, for the reason that it did not follow the language of the statute and inform them that the mandatory provisions of the law permitted the defendant only to make a statement and not to swear, but conveyed to them the impression that 'that statement' is not made under oath at the instance of the defendant, and that had he so elected he might have been sworn;" (b) that "it did not acquaint them with the general provision of the law regulating the statements of defendants, and providing that such statements shall not be under oath;" (c) that "it emphasized to the jury the fact that the statement that had been made to them by the defendant on trial was not made under oath, and failed to acquaint them with the fact that the sanction of an oath was not permitted the defendant under the law of Georgia in making his statement;" (d) that "it was directly prejudicial and hurtful to the defendant in forcing him to bear the responsibility for having delivered his statement unsworn, when under the law the responsibility was governed by statute, and no right to testify under oath accorded him."

The third ground of the motion for new trial complains of the charge: "The defendant contends that he is not guilty. He admits the killing, but contends that the killing was done under such circumstances that the law justifies. He contends that the deceased drew his pistol, that he intended to kill him, and that he shot the deceased to protect his own life." This instruction stated one of the contentions made by the prisoner in his statement before the jury, and considered in connection with other portions of the charge, was not error on the alleged ground "that it withdrew from the jury a contention of the defendant that he acted under the fears of a reasonable man, at the time of the killing, that his life was in danger, and restricted them to a consideration whether, as a matter of fact, at the time of the shooting the life of the defendant was in actual danger."

The fourth ground of the motion for new trial complains that the court erred in instructing the jury as follows: "Now gentlemen, you look to the evidence and the defendant's statement; and if you believe from the evidence and the defendant's statement that the contentions of the defendant are true, you should acquit the defendant." The assignments of error on this instruction are: "(a) It directed the jury trying the case to find the defendant guilty, even though he had fully established his contentions as to the circumstances and facts of the homicide. (b) It restricted the jury, in the consideration of whether or not the contentions of the defendant had been established, to a consideration both of the evidence and the defendant's statement, and did not permit them to determine that the defendant's contentions had been established by his statement alone, without reference to the other testimony in the case. (c) Said charge was confusing and misleading to the minds of the jury, in that it tended to impress upon their minds that the defendant was forced to establish to their satisfaction the contentions made by him, and not that he could either establish his contentions or engender a doubt in their minds as to the contentions of the state." The fifth ground of the motion for a new trial is as follows: "Because the court erred in charging the jury trying said case as follows: 'The defendant has made a statement in which he tells you that he shot the deceased to save his own life. The circumstances surrounding him at the time he shot you must gather from the testimony and the defendant's statement.' This charge was error, and was directly prejudicial, hurtful, and harmful to the defendant and his case, for the reasons that: (a) It required the jury to determine the circumstances surrounding the shooting from the testimony and the defendant's statement, and did not allow them to gather such circumstances from the defendant's statement alone, as they had a legal right to do. (b) It made mandatory upon the jury a consideration of both the sworn testimony and the defendant's statement in determining the surrounding circumstances at the time of the shooting, and did not allow them to take the defendant's statement in preference to the sworn testimony if they so desired. (c) It withdrew from the jury the right to believe the statement of the defendant in preference to the sworn testimony with respect to the surrounding circumstances of the shooting, which were the vital issues of the case and upon which the defense was based, and required them to determine those circumstances both from the sworn testimony and the defendant's statement." There is no merit in any of the assignments of error upon these instructions. We will deal specifically only with the assignment of error (b) on the instruction referred to in the fourth ground, and the assignments (a), (b), and (c) on the instruction quoted in the fifth ground; and for the reason that this court held in Rouse v. State, 135 Ga. 227 (3), 69 S.E. 180: "As the jury has the right to believe the statement of the defendant in preference to the sworn testimony, it was error to charge the jury as follows: 'If Rouse tells the jury in his statement that he shot Bailey to save his own life, the circumstances surrounding him at the time he shot you must gather from the sworn testimony and facts admitted and the defendant's statement.' " That decision, however, was rendered by only five justices, and therefore is not binding authority. The majority of the court as now constituted is constrained to disagree to the soundness of that ruling. On the trial of one accused of a criminal offense the jury in arriving at a verdict is bound to consider both the evidence submitted, and the statement of the prisoner made to them. In the trial of a criminal case the jury is sworn to well and truly try it and a true verdict give according to the law as given them in charge and the opinion they entertain of the evidence produced to them. Pen. Code 1910, § 860. "In all criminal trials, the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense. It shall not be under oath, and shall have such force only as the jury may think right to give it. They may believe it in preference to the sworn testimony in the case." Penal Code, § 1036. In McTyier v. State, 91 Ga. 254, 18 S.E. 140, the trial judge instructed the jury as follows: "Now if you find from the evidence in this case, considering in that connection the prisoner's statement," etc. The error alleged was that the instruction restricted the statement and left the jury no alternative but to consider it with the evidence and not otherwise. It was held that the instruction was not error as against the accused, the charge as to the statement being otherwise full, complete and correct. In Vaughn v. State, 88 Ga. 731, 16 S.E. 64, it was said: "The jury trying a criminal case are sworn to give a true verdict according to evidence. It is important for them not to confound the prisoner's statement with the evidence or the evidence with the statement. The statute allows them to give the statement such force as they think proper, and even to believe it in preference to the sworn testimony. In charging them the court should keep the evidence distinct from the statement and shape the general tenor of the charge by the evidence alone and the law applicable to it. For if the court should mingle evidence and statement together, the jury might find it difficult to separate them and might fail to understand the import of the instructions delivered from the bench. At some stage of the charge statutory provisions touching the statement ought to be made known to the jury, and this, as has frequently been suggested by this court, is usually enough to say touching the statement. The statute on that subject is so plain and explicit as to need no exposition or comment." Among others, the following cases are to the...