Moore v. State

• Decision Date: 19 March 1912
• Docket Number: 3,963.
• Parties: MOORE v. STATE.
• Court: Georgia Court of Appeals

74 S.E. 315

10 Ga.App. 805

MOORE v. STATE.

No. 3,963.

Court of Appeals of Georgia

March 19, 1912

Syllabus by the Court.

While as a general rule, the right of counsel to argue as to occurrences which have taken place in the presence of the jury during the trial, and to suggest to the jury any inferences legitimately deducible therefrom, is not to be abridged, still, in a criminal case, the prosecuting attorney should not be permitted, over the defendant's objection to express his individual opinion that the defendant then on trial is guilty, or to argue that the failure of the defendant to introduce testimony is attributable to a sense of conscious guilt.

Improper remarks of counsel will not work a new trial, where timely objection is not made, where it plainly appears that, under the law and the evidence, no other result was possible than that reached in the verdict rendered.

Other than as dealt with in the first and second divisions of the opinion, the trial was free from error.

Error from Superior Court, Coffee County; T. A. Parker, Judge.

Elisha Moore was convicted of crime, and brings error. Reversed.

Pottle J., dissenting.

J. W. Quincey, C. A. Ward, W. A. Wood, and F. Willis Dart, for plaintiff in error.

M. D. Dickerson, Sol. Gen., and McDonald & Willingham, for the State.

RUSSELL J.

Section 4957 of the Civil Code of 1910 declares that, "where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the same, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial, if the plaintiff's attorney is the offender." As pointed out by Justice Cobb in O'Dell v. State, 120 Ga. 155, 47 S.E. 577, this section is a codification of rulings contained in two criminal and two civil cases--Croom v. State, 90 Ga. 430 (4), 17 S.E. 1003; Farmer v. State, 91 Ga. 720 (2), 18 S.E. 987; Augusta Railroad Co. v. Randall, 85 Ga. 298 (6), 11 S.E. 706; Metropolitan Street Railroad Co. v. Johnson, 90 Ga. 501 (6), 16 S.E. 49. In the criminal cases above cited, and in the Johnson Case, supra, the ruling was invoked; but in the Randall Case, supra, the judgment was reversed, even though it does not appear that a ruling was invoked. In the present case it appears from the note of the presiding judge that the defendant had twice moved to continue the case on account of the absence of a witness, Roy Paulk, upon the statement that he expected to prove by this witness that the state's witness was of bad character, and not worthy of belief, and had made statements denying that he had bought the liquor from the defendant. In other words, the defendant had stated, upon the showing for a continuance, that he expected to elicit from the absent witness, for the purpose of impeaching the state's witness, evidence of the bad character of the state's witness, and also expected to prove by the absent witness that the state's witness had made contradictory statements as to matters material to the issue.

It appears, from the recitals of the ground of the motion for new trial, as approved by the trial judge, that the motion for a continuance was made on Tuesday, November 7th, the day previous to that on which the trial was held, and the court did not at that time put the defendant to trial, but directed the sheriff to bring in the witness Paulk, and when the case was tried on Wednesday Paulk was present and was sworn, but was not introduced by the defendant. In his argument to the jury J. N. McDonald, Esq., who was of counsel for the state, referred to the statement of counsel as to desiring the presence of the witness Paulk, and argued that the defendant had failed to introduce this witness, or to prove by him what counsel said he expected to prove by him, and that the statement was made to continue the case solely for delay, adding in his argument, "that the said statement had been made because the defendant knew he was guilty, and for the purpose of flim-flamming the court, and to continue the case, and *** that this was an evidence of the defendant's guilt." At the commencement of this part of the argument the defendant's counsel objected, upon the ground that there was nothing in the record, or before the jury, or in the evidence to authorize this kind of argument, and that it was prejudicial to the defendant's case, and requested the court to require counsel to desist from this kind of argument. The court overruled the objection, and held that it was permissible for counsel to argue before the jury anything that came up during the term of court in the presence of the jurors, in connection with the case, either during the trial or prior thereto, and that he would permit state's counsel to continue the argument along this line. The state's counsel thereafter proceeded with the argument over the counsel's objection.

The question presented by this assignment of error is twofold: (1) Was the argument unauthorized and prejudicial to the defendant? (2) If so, was the attention of the judge called to it, and his authoritative intervention so properly invoked as that his refusal to sustain the objection and to endeavor to remove the impression made upon the mind of the jury by improper argument, was error, requiring the grant of a new trial? The proposition that argument not based upon evidence is, generally speaking, improper scarcely needs to be supported by citations of authority. The jury are sworn in every criminal case to render a true verdict according to the evidence; but, as the right of counsel to argue many circumstances which may legitimately appear upon the trial in connection with the taking of the testimony is not to be unduly prescribed, it is manifest that argument with reference to these matters is not to be inhibited, and that to confine counsel solely to the words of the testimony would be to give the rule too narrow a meaning. As the law allows the jury to judge of the manner of the witnesses on the stand, and to weigh their testimony by their interest in the case, and measure their credibility by various other circumstances which may present themselves to the attention of the jury during the trial, it is plain that the jury, in determining as to the credibility of testimony put before them, can consider some matters which would not come within the testimony itself. The testimony of a particular witness might make or disprove the case of guilt, and yet his manner, as a whole, might convince the jury that he did not speak the truth when he stated the facts by him related. Certainly anything that occurs in the presence of the jury, after they are impaneled, which could legitimately throw light on the credibility of any witness, or which could add or detract from the weight of his testimony, would be legitimately a subject-matter for their consideration, and, consequently, proper subject of argument on the part of counsel.

In the present case, however, the statements which were being criticised by counsel were not addressed to the jury, but were made to the judge, in moving to postpone or continue the case. Juries have no duty in connection with the continuance of a case, and no power to affect a judgment upon the motion. The jury does not hear, as evidence in the case, the evidence relating to a motion for continuance; for they have no power to pass upon the sufficiency or credibility of such testimony. It is a matter solely for the court. On the motion for continuance the judge may disbelieve a witness whom the jury might believe, or on countershowing he may believe a witness whom the jury would entirely discredit; so that in a technical sense the evidence submitted to a court, upon a motion for continuance or postponement, is not the evidence with which the jury have to deal upon the trial, or the evidence included in their oath. Plainly, then, the objection of the counsel for the plaintiff in error that the argument was not authorized by evidence is supported. Nor does it appear that the showing for continuance was made in the presence of the jury who actually tried the case. As the motion for postponement was made the day before the trial, the jury, of course, had not been impaneled. The particular 12 jurors to whom the argument of state's counsel was being addressed may have heard the statement of counsel on the day previous, or they may not. Until they were impaneled there was nothing to require their attention to evidence, and, furthermore, a portion of the jury might have been engaged in some other case at the time the case was called on a previous day, or some of them might have been temporarily excused from the courtroom. There is nothing to show that the identical 12 men who were passing upon the issue of the defendant's guilt or innocence, and who had been sworn to determine that issue, according to the evidence, were present the previous day, and heard what transpired. Furthermore, the statement in reference to what was expected to be shown by the absent witness seems to have been made, not by defendant himself as a witness under oath, but merely as the statement of defendant's counsel in his behalf.

For all of these reasons it seems to us that any reference to the statements of the defendant's counsel the previous day before the jury were impaneled, can readily be determined to be improper, though not necessarily prejudicial; and certainly they are not ground for reversal, unless proper and timely objection was made. The rule seems to be well settled that unless an objection is interposed, and some ruling on the part of the court is invoked, a party will be...