Poole v. State

• Decision Date: 03 August 1933
• Docket Number: No. 22839.,22839.
• Citation: 47 Ga.App. 303,170 S.E. 309
• Parties: POOLE. v. STATE.
• Court: Georgia Court of Appeals

47 Ga.App. 303

170 S.E. 309

POOLE.

v.STATE.

No. 22839.

Court of Appeals of Georgia,

Division No. 1.

Aug. 3, 1933.

Syllabus by the Court.

1. The evidence objected to in ground 4 of the motion for a new trial tended to prove a circumstance which, along with other circumstances, tended to illustrate the question whether or not the defendant was intoxicated, and was admissible.

2. The trial judge absented himself from the county of the trial during a temporary adjournment. The trial was not in progress, and it was not shown that any harm was done the defendant. Under the facts of the case, such absence was not reversible error.

3. The language employed in section 11 of the Motor Vehicle Act, approved August 23, 1927 (Ga. Laws 1927, pp. 226, 236), provid ing that a motor vehicle shall not be operated upon any public street or highway "at a speed that is greater than is reasonable and safe, " is so indefinite as to render that part of the act void. It was therefore error for the court to instruct the jury in the language embodied in that part of the statute; and, under the facts of the case, it was harmful error.

4. It being only necessary that a defendant make out an affirmative defense to the reasonable satisfaction of the jury, it was error for the court, where the defendant himself introduced dying declarations, to instruct the jury in effect that they would have to he satisfied beyond a reasonable doubt that the deceased was, at the time he made such declarations, in the article of death and conscious of his condition.

5. Grounds 8, 10, and 11 disclose no reversible error.

Error from Superior Court, Cook County; W. R. Smith, Judge.

A. D. Poole was convicted of involuntary manslaughter, and he brings error.

Reversed.

Branch & Howard, Noah J. Stone, and W. Paul Carpenter, all of Atlanta, J. P. Knight, of Nashville, C. E. Parrish, of Adel, and Wilcox, Connell & Wilcox, of Valdosta, for plaintiff in error.

H. D. Morgan, Sol. Gen., of Homerville, E. D. Rivers, of Lakeland, and J. P. Tomlin-son, H. W. Nelson, and C. E. Jackson, all of Adel, for the State.

MacINTYRE, Judge.

A. D. Poole was indicted for the offense of murder; it being alleged in the indictment that he did on a day named unlawfully and with malice aforethought kill one Winona Patterson by driving an automobile against and over her. He was tried under this indictment and convicted of the offense of involuntary manslaughter in the commission of an unlawful act. Thereupon the defendant made a motion for a new trial, the same was overruled, and he excepted.

Ground 4 of the motion for a new trial complains of the admission of the following testimony:

"Q. Did Mr. Poole and Mr. Gaines during any time you were there concern themselves with the parties injured in the Chevrolet car? A. No, sir.

"Q. Did they go about where they were? A. No, sir, I didn't see them."

One of the unlawful acts charged was driving the automobile while under the influence of intoxicating liquors. The state introduced considerable evidence as to the defendant's condition with reference to his intoxication.

Some of this evidence was to the effect that immediately after the wreck he was slumped over the steering wheel of the automobile. The testimony objected to tended to prove a circumstance which, along with other circumstances, tended to illustrate the question as to whether or not the defendant was intoxicated. We hold that the testimony was admissible.

Grounds 5 and 6 complain that the court erred in refusing to grant motions for a mistrial, "for that the absence of the trial judge from the County of Cook after the trial began and before the verdict of the jury was rendered, vitiated the entire proceedings, and the verdict thereafter returned was a nullity." We quote the following from ground 5: "Movant recites and alleges as a fact that the trial began on Tuesday, February 9th, 19.12, and lasted until Monday, February 15th, 1932. late in the afternoon of Tuesday, February 9th, 1932, and after adjournment until the next morning, Honorable W. R. Smith, the presiding judge, absented himself from Cook county and spent the night at his home in Nashville, Berrien county. Late in the afternoon of Wednesday, February 10th, and after the court had been adjourned for the night, he again absented himself from Cook county and spent the night at his home in Nashville, Berrien county, but at no time was he outside of the County of Cook while the trial was actually in progress. When court convened on Thursday, February 11th, 1932, counsel for the defendant moved the court to declare a mistrial on that ground. There was no agreement between counsel for the defendant, or either of them, or the defendant himself, and the court, or counsel representing the State and counsel representing the defendant, or either of them, for the trial judge to leave the County of Cook at any time after the defendant was placed on trial. After the motion for a mistrial was submitted, and before the court ruled on the same, the trial judge directed the court reporter to let it appear in the record that J. P. Knight, one of counsel for the defendant, had seen the trial judge in Berrien county every morning before the court convened." (J. P. Knight, sworn as a witness, testified that he did not see the court, as stated in the ground.) Ground 6 recites that, after the judge had charged the jury, and after they had deliberated for several hours, the judge instructed them not to consider the case further until the following Monday morning, and recessed the court until that time and that immediately upon the reconvening of court the defendant again moved for a mistrial. Counsel for both the state and the accused cite and discuss Home v. Rogers, 110 Ga, 362, 35 S. E. 715, 49 L. R. A. 176. We do not think this case is in point, since it appears from it that the judge, during the actual progress of the trial, and during the argument of counsel to the jury, absented himself from the courtroom. Counsel also cite and discuss Martir v. State, 10 Ga. App. 455, 73 S. E. 686, wherein it was held that, if "the judge presiding in a criminal trial leaves the county of the trial while the jury is still deliberating upon its verdict, and goes to an adjoining county, the pending trial is vitiated, and a verdict thereafter returned by the jury is a nullity." (Italics ours.) In the latter case, it will be noted that the trial judge left the county of the trial while the case was in progress and the jury was deliberating upon the case, there having been no adjournment, temporary or otherwise. In the instant case; on each of the occasions complained of, the judge had adjourned the court temporarily to a fixed time. The court was not in operation during the judge's absence, and the trial was not in progress. It was time out. The court was not pretending or undertaking to transact any business with reference to the trial. The time of the temporary adjournment was tem-pus non --no time--so far as the progress of the trial was concerned, just as certain days are dies non. Under the facts of this case, we cannot see that the absence of the trial judge resulted in any harm to the accused. We do not think it was reversible error.

It appears from ground 7 that the court inadvertently charged the jury what it was necessary for the state to show, in order to render a dying declaration admissible, and then, in effect, charged them that they must be satisfied beyond a reasonable doubt that the deceased was at the time in the article of death and conscious of his condition, when, as a matter of fact, the alleged dying declaration was introduced by the defendant; and the defendant is not required to prove beyond a reasonable doubt that the deceased was in the article of...