Powers v. State
| Decision Date | 24 January 1931 |
| Docket Number | 7897. |
| Citation | 157 S.E. 195,172 Ga. 1 |
| Parties | POWERS v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 23, 1931.
Syllabus by the Court.
Indictment for being accessory before murder was not defective for failure to allege defendant was of sound mind; indictment alleging defendant was absent at time of killing, but did then and there counsel another to commit murder, was not duplicitous; indictment for being accessory before murder was not defective for failure to allege when accessory procured another to commit crime; indictment charging defendant with being accessory before murder was not defective for failure to show where defendant counseled another to commit crime.
The court properly overruled the demurrer to the indictment.
Plea in abatement on ground that grand juror appearing on indictment was not chosen as juror was properly overruled for failure to show distinct persons.
The ground of the plea in abatement that one of the grand jurors whose name appears upon the indictment as being one of the grand jurors who participated in the finding and returning of the indictment was not selected, chosen, and sworn as a juror for the county of Bibb was properly overruled.
Plea in abatement for insufficiency in evidence before grand jury to make prima facie case held insufficient.
Another ground of the plea in abatement is that there was not sufficient evidence introduced before the grand jury to make out a prima facie case and to authorize the returning of the bill of indictment. It is not contended that there was no evidence introduced before the grand jury. This ground was properly overruled. It has never been the practice in this state to go into an investigation to test the sufficiency of the evidence before the grand jury.
Law providing female shall not be subject to jury duty held not unconstitutional denial ofright to vote Constitution prohibiting state from denying right to vote because of sex does not require state to place names of females in jury box (Acts 1921, p. 106; Const. U.S. Amend 19).
Under our law as it stands, females are not subject to jury duty it being provided in the act of the General Assembly approved August 13, 1921 (Acts 1921, p. 106) that "females shall not be liable to discharge any military, jury, police, patrol or road duty." Section 2. And this law is not obnoxious to the Nineteenth Amendment to the Constitution of the United States, which reads as follows: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." This amendment to the Constitution does not contemplate that the state shall be required to place the names of females in the jury box.
Exceptions to denial of challenge to array may be made ground for new trial.
Exceptions to the overruling by the court of a motion in the nature of a challenge to the array may be made the ground of a motion for a new trial.
Challenge to array on ground that jury commissioner was county officer held without merit, where commissioner was merely property bookkeeper appointed by county commissioners.
The ground of the challenge to the array, based on the alleged fact that W. K. Young, acting in the capacity of a jury commissioner when certifying to the list of traverse jurors whose names were placed in the traverse jury box when the list of jurors was last revised, was a county officer, is without merit; because the testimony taken in regard to this question shows that he was not a county officer. He was merely a "property bookkeeper" appointed by the county commissioners, and not elected by the people, to act as long as his services should be satisfactory to the commissioners.
Charge that punishment for accessory before murder is same as though charge was murder held proper; charge that defendant, if found guilty of being accessory before murder would receive same punishment as though charged with murder, did not erroneously require same punishment as imposed on principal convicted for murder.
Error is assigned upon the following part of the court's charge: This charge is a correct statement of the law. The statement in the charge, that, "if you find this defendant guilty, she would receive the same punishment as though she was charged with the crime of murder direct," did not amount to stating to the jury that the defendant, if convicted, should receive the same punishment as though she was charged with the crime of murder. If the court had used the word ""should," the jury might have drawn the inference that, inasmuch as the joint defendant had been convicted of murder, without a recommendation, the jury should, on the trial of this defendant, withhold a recommendation. But the charge as given is not to be so construed, and is a correct statement of the law.
Exception for failure to charge all of Code section, not stating part charged and part not charged, held insufficient (Park's Ann. Pen. Code, § 63).
In one ground of the motion exception is taken to the charge of the court, on the ground "the court erred in its failure to charge the jury all of section 63 of Park's Code," setting out section 63 in full. This exception is without merit, because it fails to state in this connection what part of section 63 the court charged and what part the court failed to charge.
Exception for failure to charge any part of Code section held without merit, where portions of section were, in substance, charged.
Again, the charge of the court is excepted to on the ground that the court "did not charge any portion of said section as it was set out in the Code." This ground is without merit, because upon examination of the charge it appears that portions of the section referred to were, in substance, given in charge to the jury.
Charge that defendant prosecuted for being accessory before murder would be imprisoned for life, if jury recommended mercy, held proper; charge on recommendation of mercy, "if for any reason that occurs to you," did not limit jury in making recommendation.
The court charged the jury, in part, that: "If, for any reason that occurs to you, you decide to recommend her to the mercy of the court, the effect of that recommendation would be that she would be punished by imprisonment for life in the State penitentiary." This charge is a correct statement of the law, and not error. The fact that the court used the expression, "If, for any reason that occurs to you, you decide to recommend her to the mercy of the court," etc., did not limit the jury in any way, in the exercise of their privilege, right, or duty, to make recommendation.
Exception to charge leaving jury to determine recommendation in murder prosecution uninfluenced by any consideration, except own sense of duty, held overruled by divided court.
The court charged the jury, in part, as follows: "Whether she is punished by death or life imprisonment, if you find her guilty, is a matter entirely for you uninfluenced by any consideration except by your own sense of propriety and duty and right." And in another part of the charge the court gave the following instruction: The case being for decision by a full bench of six justices who are evenly divided upon the question as to whether these charges were erroneous or not, RUSSELL, C.J., ATKINSON, J., and HINES, J., being of the opinion that the charges were erroneous because they limited the jury in the exercise of their privilege and right to make a recommendation, and BECK, P.J., HILL, J., and GILBERT, J., being of the contrary opinion, the judgment is affirmed as to the exceptions to the instructions just quoted.
Where testimony showed defendant wanted policy taken on deceased fixed like another policy, evidence of other policy was properly admitted.
The evidence as to a policy of insurance, referred to by a witness for the state as the Burnam policy, was properly admitted, in view of the other testimony of this witness that the defendant, when she took the policy on the life of Parks, said she wanted it "fixed like the other policy issued on the Burnam boy"; it appearing that the Burnam policy had "an absolute assignment payable to his estate and assigned to Mrs. Powers."
Evidence that defendant charged with being accessory before murder desired policy on deceased like another policy assigned to her was admissible to show motive.
Exception is taken to the admission in evidence of the following testimony of a witness for the State: This evidence was not irrelevant. It tended to illustrate motive, in view of the evidence as to the character of the policy on Claude Burnam's life and the assignment thereof.
Under the rulings stated in the last two notes, other testimony in regard to the "Burnam policy" and the character of that policy and its assignment, excepted to in the motion for new trial, was admissible.
Evidence of pistol purchased shortly before homicide by defendant charged with being accessory before murder, held properly admitted; whether pistol identified as...
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