Reed v. State, (No. 5482.)

• Citation: 163 Ga. 206,135 S.E. 748
• Decision Date: 19 November 1926
• Docket Number: (No. 5482.)
• Parties: REED v. STATE.
• Court: Georgia Supreme Court

163 Ga. 206

135 S.E. 748

REED

v.STATE.

(No. 5482.)

Supreme Court of Georgia.

Nov. 19, 1926.

(Syllabus by the Court.)

Russell, C. J., and Atkinson, J., dissenting in part.

Error from Superior Court, Walker County; James Maddox, Judge.

Marshall Reed was convicted of murder, and he brings error. Affirmed.

T. W. Stanfield, of Chattanooga, Tenn., and Rosser & Shaw, of La Fayette, for plaintiff in error.

J. F. Kelly, Sol. Gen., of Rome, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

GILBERT, J. Marshall Reed was convicted of the offense of murder. His motion for a new trial was overruled, and he excepted. There was evidence, though conflicting, together with statement of the accused, from which the jury was authorized to find the following facts: On August 29, 1925, Saturday night, the accused, together with a woman companion, Mrs. Probasco, traveling in a Ford car, arrived at a church in Rossville, Walker county. They parked the car on a narrow street, nearly opposite the dwelling and cold-drink stand of T. C. Hearn, who was a deputy sheriff. The accused accompanied his companion to the church door, when he returned to the automobile, she alone attending the services. When the services were concluded, the companion found her way back to the Ford car, where the defendant had dropped to sleep. In the meantime others of the church attendants had stopped in at the drink stand of Hearn, among them W. H. Price, G. A. Holcombe, and Mrs. Holcombe. Holcombe resided next door to, and adjoining, Hearn. Leaving Price and Hearn in the drink stand, the Holcombes went home. In a few minutes, about 9 o'clock, Holcombe was attracted by a disturbance across the street in the Ford car occupied by the accused and Mrs. Probasco. While Holcombe was standing in his door, about six steps away, he heard Mrs. Probasco say, "You know I was at home ironing when you made me come down here, " and saw the accused strike her. Holcombe walked to Hearn's door and said to Hearn, "There is somebody out here fighting, man and woman." About that time he heard the woman crying, In a low voice. Hearn got up, got his hat, and put his pistol in his hip-pocket, and came out the door, saying, "Well, let's go out there and see about it." Hearn, Price, and Holcombe walked up near the car, and Hearn said: "What does this mean?" The accused said, "I don't know as it is any of your business." Hearn asked the woman if the accused was fighting or hitting her, and she answered, "Yes, he hit me." Hearn then said: "This has to be cut out." The accused replied with an oath, and Hearn said, "I will have to take you down, " and stepped up with one foot on the running board of thecar; whereupon the accused said: "You Goddamned son of a bitch, you can't take me nowhere." He turned the woman loose, and dropped his hand down under the steering wheel, and when he did that he shot Hearn and Price and turned back to Holcombe. At this point Holcombe walked off, going back towards Hearn's porch, when the next shot was fired. Hearn did not have his gun out in his hand at all, did not make any effort to get his gun; he threw his hands up, and did not atany time curse the accused, but talked to the accused in a kind way. Holcombe, after the shooting, and before the ambulance came for Hearn and Price, both of whom were shot, helped to get Hearn in the ambulance. The dead man was lying in the road. Holcombe testified: "When I got there I helped turn him over, and his pistol fell out of his pocket, his pistol was in the scabbard. * * * A man could not have gotten his hand on the trigger of the pistol in the scabbard and snapped it."

The circumstances were also stated by another witness as follows: When Holcombe reported that something was going on wrong outside, he and Hearn went out to see about it. Hearn walked up to the car, and said: "What is the trouble out here?" Reed said: "I don't know as it is any of your business." Holcombe, Price, and Hearn were standing by the car. Hearn asked the woman", "Was he hitting or fighting you?" She said: "Yes, " whining it out like she might have been crying. Witness did not think she was crying, but she said, "Yes, he hit me over the head." Hearn remarked: "I am an officer, " and said, "What are you beating this woman about?" Reed replied, "What in the hell is it to you?" and "I God, is she your'n?" Hearn said, "No, I am an officer, and will have to take you down." Reed ripped out an oath, and said, "You God damn son of a bitch, you won't take me nowhere." About this time Hearn stepped off the running board and threw up his hands, took his hand off the car, and put it up. and Reed "scrouged" down under the steering wheel of the car. Witness noticed his hand under the steering wheel and his hand on his left arm, and about that time the first shot was fired. Hearn was standing about even with the muzzle of the pistol. Then he attempted to shoot Holcombe, but did not hit him. Hearn staggered around the back of the car, and fell. Hearn died almost immediately from the effects of the wound inflicted by the accused. The woman got out of the car and fled. After the shooting, the accused left in the car, very rapidly, wrecking the car in a short distance by running into a telegraph pole. A witness who witnessed the wrecking testified that the accused appeared to be drunk or excited. The accused left the car, and was afterwards arrested. Other evidence, and the statement of the accused, tended to show that he acted in self-defense in resisting an illegal arrest.

1. The first headnote does not require elaboration.

2. The motion for a new trial assigns as error that the court expressed an opinion approving the character of the witness and tending to Impress the jury that the witness was entitled to credit, in the following circumstances: L. W. Harmon, sheriff of the county, was examined as a witness. The solicitor general asked, "What else did she say about anything, Mr. Harmon, about how she left home that night?" Counsel for the movant said: "I object to him leading the witness; let him state all that was said." The court said: "I don't think a man like Mr. Harmon, who is an officer, and intelligent, would be led or influenced by the solicitor." Movant contends that this statement on the part of the court was error, in that it gave potency to the witness' testimony, and was an expression of opinion by the court that the witness, being an officer, and intelligent, was above being influenced, and would tell the truth irrespective of being asked leading questions, and tended to impress upon the jury that the fact that the witness was an officer entitled him to credit as a witness. It was also contended that Harmon was being examined as to previous statements made to him by Mrs. Probasco, a material witness for movant, the purpose of the state being to impeach Mrs. Probasco: and movant contends that the statement of the court was prejudicial, because it led the jury to believe that the testimony of the witness, who was an officer, should be accepted in preference to that of the woman witness, who was not an officer; that this was especially true, in view of the fact that the person killed was also an officer, and held a commission as deputy sheriff under the witness, and that the language would tend to lead the jury to believe that officers were not so likely to err as other persons, from which the jury might have drawn the conclusion that the deceased, being an officer, was not so likely to be at fault as the movant at the time of the killing.

In Oliveros v. State, 120 Ga. 237, 47 S. E. 627, 1 Ann. Cas. 114, this court was called upon to decide whether the court erred in overruling a plea of former jeopardy under the following circumstances: Oliveros had been indicted for the offense of embezzlement. On the trial a receipt signed by the accused, acknowledging reception of the money, was offered in evidence by the state, and objected to by the defense. The trial judge, in giving his reason for admitting it, expressed his opinion as to the effect and weight of such a receipt as evidence. After the ruling, the trial proceeded for the remain, der of the day. The next morning, over a protest of the accused, the judge dischargedthe jury, and declared a mistrial, because of the remarks made by him. admitting them to be so erroneous as to vitiate any verdict brought in by the jury. On the accused being again arraigned, the plea of former jeopardy was offered, and was overruled. In order to decide whether the plea was properly overruled, this court deemed it necessary to determine whether the mistrial was authorized. Mr. Chief Justice Simmons, delivering the opinion, elaborately discussed Penal Code 1910, § 1058, which is as follows:

"It is error for the judge of the superior court, in any case, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and a violation of the provisions of this section shall be held by the Supreme Court to be error, and the decision in such case reversed, and a new trial granted, with such directions as the Supreme Court may lawfully give."

Also the constitutional provision, which declares:

"No person shall be put in jeopardy of life or liberty more than once for the same offense, save on his [or her] own motion for a new trial, after conviction, or in case of mistrial." Constitution of Georgia, art. 1, § 1, par. 8 (Civil Code 1910, § 6364); Penal Code 1910, § 11.

The court held that the granting of a mistrial over the protest of the accused was not authorized. Chief Justice Simmons said:

"To justify the grant of a mistrial without the consent of the accused, there must be either a moral or a physical necessity"—citing Nolan V. State, 55 Ga. 521, 21 Am. Rep. 281.

After so deciding the Issue for the majority of the court, Chief Justice Simmons further said:

"But comparing the remarks of the judge...