Nobles v. State

• Citation: 127 Ga. 212,56 S.E. 125
• Parties: NOBLES. v. STATE.
• Decision Date: 13 December 1906
• Court: Georgia Supreme Court

127 Ga. 212

56 S.E. 125

NOBLES.

v.STATE.

Supreme Court of Georgia.

Dec. 13, 1906.

1. Jury — Examination — Trial for Misdemeanor—Questions to Jurors.

In a misdemeanor case, while it is competent, upon the request of either party, to put the jurors upon their voir dire, it is largely in the discretion of the court as to what question will be propounded. In the exercise of this discretion the judge will be guided largely by the ground of attack. Where the ground of attack was based only upon the fact that the jurors had previously heard certain affidavits read and certain evidence delivered on a motion to continue, which would tend to cause them to prejudge the case, and it was insisted that the statutory questions be propounded to them on the voir dire, and the court propounded the question, "Have you, from having seen the crime committed, or from having heard anypart of the evidence delivered under oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar?" it was no abuse of discretion to refuse to allow either of the other statutory questions propounded.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Jury, § 562.]

2. Same—Striking Jurors.

In such case it is proper, after the court has pronounced the jurors competent, to require the jury to be selected from those declared competent in the same manner as if there had been no challenge of their competency, and accordingly it is not erroneous to require the defendant to exercise the first right to strike under the alternating rule provided for the selection of jurors in misdemeanor cases.

3. Adultery—Evidence.

Where one is prosecuted for adultery, evidence tending to show improper conduct between the defendant and his co-adulterer, committed in a different county from that wherein the prosecution is conducted, under the rulings in Lipham v. State, 53 S. E. 817, 125 Ga. 52, and citations, is admissible as showing the relations between the parties, and as a circumstance pointing to the guilt of the accused.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Adultery, § 30.]

4. Criminal Law—Argument of Counsel.

A defendant while making a statement, used, for the purpose of illustration, a map which he held in his hand, but the map was not introduced in evidence. It was not erroneous for the court to refuse to allow council for the defendant to make use of the map during his argument. (Lumpkin, J., dissents.)

5. Same—Instructions.

It is only where a case is wholly dependent upon the law of circumstantial evidence that the trial judge is required to give the law of circumstantial evidence. It follows that, where the indictment is supported by both circumstantial and direct evidence, it is not erroneous for the court to refuse to charge the law of circumstantial evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1883.]

6. Adultery—Evidence.

The evidence supports the verdict, and no error was committed by the court, which, for any reason assigned, requires a reversal of the judgment refusing to grant a new trial. (Syllabus by the Court.)

Error from City Court of Nashville; H. B. Peeples, Judge.

J. J. Nobles was convicted of a misdemeanor, and brings error. Affirmed.

Hendricks, Smith & Christian, for plaintiff in error.

W. D. Buice, J. P. Knight, and Alexander & Gary, for the State.

ATKINSON, J. 1. In the first, second, and third grounds of the amendment to the motion for new trial, complaint is made of certain rulings of the court relating to the questions to be propounded to the jurors for the purpose of ascertaining whether or not they were competent. This is a misdemeanor case. The jurors had been attacked only upon the ground of having previously heard certain affidavits read and certain evidence delivered on a motion to continue. The presiding judge permitted the jurors to be asked, under oath: "Have you, from having seen the crime committed, or from having heard any testimony delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar?" No juror was ruled competent except such as answered that question in the negative. In Sullivan v. Padrosa, 122 Ga. 338, 50 S. E. 143, Mr. Justice Cobb, speaking for the court, says (page 340 of 122 Ga., page 143 of 50 S. E.): "In misdemeanor and civil cases there is no statutory provision regulating the method to be adopted by the court in determining the competency of the juror, but the settled rule is that either party has a right to request that the jurors be put upon their voir dire in order that their competency may be determined. When; such request is made, it is the duty of the court to propound, or cause to be propounded, such questions as will test the competency of the jurors to pass upon the Issues in the case. The questions to be asked in each case are to be determined by the court, and what shall be the character and number of the questions Is left largely to the discretion of the-judge, who must keep in mind all the time the object to be attained; that is, the determination of whether the minds of the jurors are in such a condition that they can pass fairly and intelligently upon the issues to be submitted to them." In the case at bar, taking into consideration the grounds of attack upon the competency of the jurors and the question which the court permitted to be propounded to the jurors, It does not appear that there was any such abuse of discretion upon the part of the court as would require the reversal of the judgment

2. After the jurors had been challenged by the defendant and pronounced competent by the court, it was proper to direct the selection of the jury to try the defendant from those jurors who had been declared competent In the same manner as if there had been no challenge. This being true, it was not erroneous for the court to impose upon the defendant the duty, first, of exercising his right to strike according to the alternating system, so as to give to the defendant the first, and the state the second, strike.

3. In the fourth and fifth grounds of the amendment, complaint is made touching the admission of certain evidence offered which tended to show improper conduct between the defendant and the person with whom it is charged he had committed the adultery, the evidence showing that the improper conduct referred to was not committed within the county within which the defendant was being tried. The objection was that the evidence was irrelevant and immaterial. While the evidence objected to could not be the basis of a conviction in the county where the prosecution was conducted, under the ruling in Lipham v. State, 125 Ga. 52, 53 S. E. 817, and authorities cited, it was, nevertheless, relevant and admissible for the purpose of showing the relation between the defendant and the person with whom it is al-leged he had committed the offense of adultery, and it could be considered as a circumstance looking to the guilt of the accused.

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