Morris v. State

• Decision Date: 27 November 1937
• Docket Number: 11939.
• Citation: 194 S.E. 214,185 Ga. 67
• Parties: MORRIS v. STATE.
• Court: Georgia Supreme Court

194 S.E. 214

185 Ga. 67

MORRIS v. STATE.

No. 11939.

Supreme Court of Georgia

November 27, 1937

Error from Superior Court, Johnson County; J. L. Kent, Judge.

Albert Morris was prosecuted for murder, and he brings error to review his conviction.

Affirmed.

W. C. Brinson and E. L. Rowland, both of Wrightsville, and W. A. Dampier, of Dublin, for plaintiff in error.

J. Roy Rowland, Sol. Gen., of Wrightsville, M. J. Yeomans, Atty Gen., Ellis G. Arnall, Asst. Atty. Gen., and E. J. Clower, of Atlanta, for the State.

Syllabus OPINION.

ATKINSON Presiding Justice.

1. 'Where remarks are made by the trial judge to counsel in a criminal case in the hearing of the jurors, which counsel contend were of such a character as to prejudice the minds of the jurors hearing them against the cause of their client they should either move for a postponement of the hearing in order that other jurors may be impaneled than those present when the remark is made, or, if the jurors have actually been selected and impaneled to try the particular case, a motion should be made to have a mistrial declared; and upon the judge's refusal to grant a motion of the character indicated his ruling would be subject to review. Counsel having failed to make such motion and having proceeded without objection with the trial, cannot, after conviction, raise the question as to the prejudicial nature of the remarks complained of, in a motion for a new trial.' Perdue v. State, 135 Ga. 277, 69 S.E. 184, and cit.

(a) Applying the foregoing to the instant case, the first special ground did not show cause for the grant of a new trial.

(b) The foregoing ruling does not mean that in the instant case the remarks by the court to the defendant's attorney were proper, or that they were not prejudicial.

2. A ground of the motion for a new trial complains that on the trial for murder the judge 'omitted to charge or give in charge the definition of express malice.' This ground, which should be complete within itself, fails to point out wherein the omission to define express malice was prejudicial to the defendant, and is insufficient to present a question for decision.

3. The judgment instructed the jury: 'Malice shall be implied when no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.' This charge was not erroneous, as contended, on the ground that the judge 'did not tell the jury he was defining express malice, but merely told them that malice without saying whether express malice or implied malice, shall be implied when no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.' Nor was the charge objectionable on the ground that it was an intimation of an opinion that malice of some kind had been proved.

4. The statutory exemption...