Nix v. State

• Decision Date: 02 September 1919
• Docket Number: 1133.
• Parties: NIX v. STATE.
• Court: Georgia Supreme Court

100 S.E. 197

149 Ga. 304

NIX v. STATE.

No. 1133.

Supreme Court of Georgia

September 2, 1919

Syllabus by the Court.

The court did not err in admitting evidence of confessions made by the defendant.

The extracts read from a volume of law reports to the court in the presence and hearing of the jury were not of such character as to require the court, upon motion of counsel for the accused, to grant a mistrial, as they were not so inflammatory in character as to arouse prejudice against the accused, nor did they seek to introduce material facts connected with the case which had not been properly introduced in evidence.

Other remarks made by the solicitor general in the course of his argument to the jury did not require a reversal of the judgment refusing a new trial; no motion for a mistrial having been made at the time in the trial court.

Additional Syllabus by Editorial Staff.

The facts not in the record, which it is improper for counsel to introduce in his argument, are material facts which might be considered by the jury as entering into the determination of the main question of facts before them as to defendant's guilt.

Atkinson and Hill, JJ., dissenting in part.

Error from Superior Court, Muscogee County; G. H. Howard, Judge.

Bartow Nix was convicted of murder, his motion for a new trial was denied, and he brings error. Affirmed.

See also, 22 Ga.App. 136, 95 S.E. 534.

Geo. C Palmer and Gilbert W. Fincher, both of Columbus, for plaintiff in error.

C. F McLaughlin, Sol. Gen., of Columbus, Clifford Walker, Atty. Gen., and M. C. Bennet, Asst. Atty. Gen., for the State.

BECK P.J.

Bartow Nix was tried under an indictment charging him with the murder of C. L. Alexander and Jesse Everidge, and the jury trying the case returned a verdict of guilty; there being no recommendation made by them. The defendant made a motion for a new trial, which upon the hearing thereof the court overruled, and the defendant excepted.

1. The original motion contained the general grounds. In the first ground of the amendment to the motion complaint is made of the admission in evidence of a confession made by the defendant. This evidence, which is set forth in the motion in the form of questions and answers, shows that the prisoner was taken from Muscogee county to Macon, Ga., where he was confined in jail. After he was in jail, according to the testimony of James Palmer, the witness whose testimony was admitted over objection, the accused made a complete confession, sustaining the charge as made in the indictment. In response to questions propounded to him in the course of making the confession, the prisoner fully and in detail stated the circumstances of the killing. This confession was made first in a very short time after the arrival at the Bibb county jail, about 9 o'clock in the evening, and the witness Palmer then testified to a confession substantially the same as made by the accused the next morning. The witness, after having testified to the confession, was interrogated by counsel for the accused as to the circumstances under which it was made, and this questioning of the witness elicited the testimony following:

"Q. What did you say to him on your way to Macon? A. We talked all the way along. He never talked. I told him, before he ever went to talking, that there was one thing sure--that he never would no more in this world do his wife and children any more good. Q. You told him that, and that very naturally frightened him? A. I don't know whether it did or not. Q. You don't suppose that frightened him at all? A. It didn't seem to. Q. Up to that time he never had made any confession, had he? A. No, sir. Q. How come him to open up in the jail and tell you about it? What was said to him there? A. He just opened it himself. Q. Nobody never said anything to him at all? A. Of course he went to talking. Q. Who brought up the conversation? Tell exactly just what you said to him. A. I told him just exactly what I said. Q. No; you haven't. What caused him to talk over there? A. He just went--we all set down there, and he just opened up and went to talking, the same thing over. Q. What same thing over? A. About how he killed him. Q. Thought you said he never had told it before that? A. Oh, I told you before we went over there--before we got to Buena Vista. Q. I understood you to say, when you got to the jail you tried to make him sit down, and he stood up, and that was when he first told you how it happened. A. That was one time. Q. Where did he first tell you? A. Between here and Buena Vista, when I first went through there, he connected Will Howard; and Culver and Clements wanted me to phone back here and get them locked up, and I wouldn't do it, because I didn't believe it. Q. He didn't tell you then he killed them? A. Yes, sir. Q. What caused him to tell it? A. When I told him about his folks." Defendant's counsel moved to exclude this evidence of a confession, on the ground that, in view of the testimony of the witness on cross-examination, the confession was not freely and voluntarily made, but was induced by fear upon the part of the defendant, generated in his mind by the statement of Palmer to the defendant, before the alleged confession was made, "that one thing was certain, he would never in this world do his wife and children any more good." The court overruled the motion to exclude the testimony, and admitted it. We are of the opinion that the court properly overruled the motion. This confession was made on the next day, when the prisoner was safely lodged in the jail of Bibb county, and apparently safe from any danger whatever. Whether the confession made immediately after the statement to the prisoner, which we have quoted above, would have been admissible, had not substantially the same confession been made the next day in the jail, we do not now rule.

Another witness, Clements, testified to a confession made by the accused on the way from Columbus to Macon, Ga., and also testified in connection that he made the same confession to himself, to Palmer, and Culver after he was in jail at Macon. The statement and confession made by the prisoner was made in response to questions propounded to him. On cross-examination this witness testified as follows:

"Q. You say, going to Buena Vista in the automobile, you commenced talking to him about it? A. Yes, sir. Q. You told him that Albert had told it all, and he had just as well tell it? A. Told him Albert had owned up to it; yes, sir. Q. And he had just as well own up to it? A. Yes, sir."

This testimony of the witness Clements as to the confession made by the prisoner was also objected to, and counsel for the defendant moved to exclude the same on the ground that it appeared that the confession was not freely and voluntarily made, but that the accused was induced to make it by the statement that "Albert had owned up to it, and he might as well own up to it." The person referred to as Albert was Albert Nix, who was jointly indicted with the accused. The motion to exclude the testimony was overruled. In this the court did not err. In view of all the facts and circumstances, we think it was a question for the jury to decide as to whether the confession was freely and voluntarily made. The motion to exclude the testimony of Clements included the confession made in the jail on the next morning after the arrival, as well as the confession made on the way to Macon the day before, and was not directed solely to the admissibility of the alleged confession immediately following the statement made to the prisoner that Albert had confessed and he might as well "own up." Nor can we say that the statement made by Clements tended to induce the confession. There was no promise that it would be better for him, or that it would inure in any way to his benefit for him, to make a confession. The statement that one jointly indicted had confessed might have caused the prisoner to despair of making a successful defense, but we do not see anthing in the circumstances to induce him to confess to anything that was not true, in order to derive a benefit from the confession. In the case of Dixon v. State, 116 Ga. 186, 42 S.E. 357, it was said:

"Though evidence of an incriminating statement made by a prisoner to another shortly after the latter had offered an inducement extending a hope of benefit is not admissible, another and entirely different incriminating statement, made hours afterwards to the same person under circumstances tending to show that it was purely voluntary and not elicited by such inducement, may be proved; the question whether or not the statement was in fact free and voluntary being one for determination by the jury."

And in the case of Waycaster v. State, 136 Ga. 95, 70 S.E. 883, where the circumstances under which the confession was made tended more strongly than in the present case to show inducement to the confession, the court held that, in view of the time that had elapsed between the time of the statement made by an officer, alleged to be an inducement, and the confession offered in evidence, it was a question for the jury to decide whether or not the testimony of the witness offered to prove the confession should be considered by them. See, also, Wilson v. State, 19 Ga.App. 759, 92 S.E. 309. The evidence of confession was prima facie admissible, and there was no complaint that the jury was not properly instructed and cautioned in regard to receiving the confession of guilt, and that it was their duty to reject the confession entirely, if it appeared that it was not freely and voluntarily made.

2. During his argument the solicitor general read in the presence and hearing of the jury the following extract from the opinion in the case of Eberhart v. State, 47 Ga. 598:

"It may

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