Nobles v. State

• Decision Date: 13 January 1896
• Citation: 26 S.E. 64,98 Ga. 73
• Parties: NOBLES v. STATE.
• Court: Georgia Supreme Court

26 S.E. 64

98 Ga. 73

NOBLES v. STATE.

Supreme Court of Georgia

January 13, 1896

Syllabus by the Court.

1. Whether or not the grounds relied upon as extraordinary in application for a new trial in a criminal case are in law sufficient, as such extraordinary grounds, to require the consideration of a motion for a new trial based thereon, if the trial judge, nevertheless, takes cognizance thereof, and overrules a motion to dismiss such a motion for a new trial made upon the ground that the grounds relied upon as extraordinary are not in law sufficient, and afterwards hears and overrules the motion itself upon its merits, this court will treat the motion for a new trial so made as though it had been originally made in due time, and, in its judgment will review all questions of law made on the trial, and presented by the record here.

2. Where, in an indictment for murder, the homicide is alleged to have been committed in pursuance of a conspiracy entered into among several persons, all of whom are alleged to have been principals in the first degree, a conviction of one or more of the defendants, if otherwise legal, will be upheld notwithstanding the acquittal of one or more of the persons jointly indicted.

3. Where several persons are being jointly tried, and confessions of each are offered in evidence, a charge of the trial judge, "I further charge you, should you find from the evidence that any one or more of the defendants made confessions, such confession would only apply to the one making it, and would not inculpate or implicate any other one of them so far as that particular confession is concerned," is a sufficient caution to the jury not to consider the confession of one as bearing upon the guilt or innocence of the others.

4. Where, upon the subject of confessions, the charge of the court is in all other respects full and fair, a mere failure to charge that they should be received with caution, and scanned with care, will not, in the absence of a request to charge to that effect, be sufficient to justify the grant of a new trial.

5. Where a person suspected of complicity in the commission of a criminal offense voluntarily inquires of another as to the probable result of the cause in the event a confession is made, and the person interrogated truthfully states that, in his opinion, a conviction would follow, and that such conviction would result either in the death penalty or a sentence to life imprisonment, and that a confession might result in the latter punishment, such statement does not render a confession then made inadmissible, as having been obtained by improper or illegal means.

6. Taking the evidence pro and con bearing upon the subject of the alleged insanity of the accused as offered at the hearing of the motion, and treating that offered by the movant as having been newly discovered, thus placing it in its most favorable light, it was wholly insufficient, when considered in the light of the evidence offered in rebuttal by the state, to authorize, much less require, the grant of a new trial; and the discretion of the court in refusing to grant a new trial upon such evidence was properly exercised.

7. The evidence fully warranted the verdict, and there was no charge, omission to charge, or error of any kind which would warrant a reversal of the judgment below.

Error from superior court, Twiggs county; C. C. Smith, Judge.

Elizabeth Nobles was convicted of murder, and brings error. Affirmed.

Marion Harris and Glenn & Rountree, for plaintiff in error.

Tom Eason, Sol. Gen., J. M. Terrell, Atty. Gen., and John M. Stubbs, for the State.

ATKINSON J.

The plaintiff in error, having been convicted of the offense of murder, made a motion for a new trial upon extraordinary grounds, which the circuit judge entertained, and upon which he granted a rule nisi, requiring the solicitor general, who prosecutes for the state, to show cause why a new trial should not be granted. At the hearing, a motion was made to dismiss the motion for a new trial, upon the ground that the reasons urged to sustain it were insufficient in law to authorize the court to assume jurisdiction and entertain it. This motion was overruled, and the motion for a new trial, being considered upon its merits, was itself overruled. In this court, counsel for the state sought to raise again the question of the insufficiency of the grounds stated to authorize the circuit judge to entertain and determine the motion for new trial, suggesting that, inasmuch as the court had no jurisdiction to entertain the motion, no error thereafter committed in overruling it could be considered upon writ of error. We do not think this contention well founded. It will be borne in mind that the present is a criminal case, and that a ruling made by a circuit judge adverse to the state, even if otherwise subject to meritorious objection, cannot be reviewed upon writ of error; and this is true, even if exceptions pendente lite to the ruling complained of had been taken by counsel for the state, which was not done in any present case, and could not be done in any criminal case. The state, not being entitled to prosecute directly a writ of error for the reversal of such a ruling, is not entitled, by indirection, to call again in question a ruling thus made against the defendant in the court below. We therefore dismiss the technical question made in this case, with the observation that, inasmuch as the circuit judge entertained the motion and determined the questions made upon their merits, this court will not inquire whether the grounds upon which he entertained the motion, made upon alleged extraordinary grounds, were or were not sufficient in law, but will treat the motion as in all respects regular, and review upon their merits the several rulings alleged as error in the grounds of the motion.

2. We do not think the court erred in overruling the defendant's motion to set aside the verdict upon either of the grounds of the motion made for that purpose. The plaintiff in error, jointly with four others, was charged in one count of the indictment as a principal in the first degree, and in the second count was charged as a principal in the second degree. The jury found against her a general verdict of guilty, and the effect of this verdict was to convict her as a principal; whether in the first or second degree is immaterial. The offense of murder in both degrees is punishable alike in this state. See Leonard v State, 77 Ga. 764; Collins v. State, 88 Ga. 347, 14 S.E. 474, and authorities there cited. They involve the rendition of the same judgment; are carried into execution in the same manner; and hence, whatever difference of opinion may have heretofore existed as to whether the evidence necessary to support a conviction under an indictment charging one as principal in the first degree will support a conviction of one as principal in the second degree, such differences are not definitely resolved by the judgment of this court rendered in the case last above cited, wherein the present Chief Justice, then Associate Justice, Simmons, in delivering the opinion of the court, pronounces as follows: "There is no difference in this state between the punishment of a principal in the first degree and that of a principal in the second degree, and, where this is true, it seems now to be well settled that there is no practical or material difference between principals of the two degrees, and a principal in the second degree, and may be convicted on an indictment charging him as a principal in the first degree. In other words, an indictment charging him as principal in the first degree is supported by evidence showing him to be a principal in the second degree."...