Roberson v. State
| Decision Date | 14 February 1911 |
| Citation | 70 S.E. 175,135 Ga. 654 |
| Parties | ROBERSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Even if certain statements which were attributed to the defendant were of such character as would make them amount to a confession, the mere failure to instruct the jury as to the law of confessions, in the absence of an appropriate request is no cause for the grant of a new trial.
Under the special facts of this case, it was not ground for new trial that the judge repeated his instructions to the jury as to the different forms of the verdict authorized to be rendered, in the presence of the defendant, but during the voluntary absence of his counsel.
(a) Certain former cases distinguished and modified in so far as anything said in them may conflict with the ruling here announced.
In the light of the evidence and the entire charge, the remaining grounds of the motion for new trial, as approved by the judge, were without merit, nor were they of such character as to require further discussion.
Error from Superior Court, Dodge County; J. H. Martin, Judge.
Elwood Roberson was convicted of murder, and he brings error. Affirmed.
D. M Roberts & Son and J. H. Roberts, for plaintiff in error.
E. D Graham, Sol. Gen., and H. A. Hall, Atty. Gen., for the State.
Elwood Roberson and Anna Hendley were indicted for the murder of Fayette Hendley. Elwood Roberson was tried and found guilty by a jury without recommendation. He moved for a new trial. The motion was overruled, and he excepted.
1. One ground of the motion for new trial complained that the court erred in failing to charge the jury upon the subject of confessions. There was no request by the accused or his counsel to charge upon that subject. There was evidence as to certain inculpatory statements which the defendant made. In the judge's note of approval of this ground of the motion for new trial, it was stated that the court charged upon the subject of incriminating statements. There is a substantial difference between confessions and incriminating statements. Weaver v. State, 135 Ga. 317, 69 S.E. 488. Even if the statements attributed to the accused were sufficient to amount to a confession, the mere failure to instruct the jury on the law of confessions, in the absence of an appropriaate request, is not cause for the grant of a new trial. Pierce v. State, 132 Ga. 27, 63 S.E. 792.
2. Another ground of the motion for new trial complained as follows: After the jury had been charged and retired to the jury room for consideration of the case, and the court had taken a recess for supper, and after supper the jury were brought back in response to a request for a recharge, one of the jurors inquired of the court, "In case we find the defendant guilty and recommend mercy, have we got to place a sentence on the verdict or not?" Whereupon the judge, in the absence of defendant's only counsel, proceeded to instruct them on the form of their verdict. It was insisted that this was reversible error because it was the defendant's constitutional right to be present by counsel, and that he had not waived that right, and that the instruction by the court delivered to the jury in the absence of counsel was the delivery of such additional charge as amounted to a violation of the defendant's constitutional right. In approving this ground of the motion the court certified that the charge was concluded just at supper time and the judge directed that the jury be carried to supper, and stated in open court that court would again convene after supper, and instructed that the jury be carried to the jury room when they had eaten supper, that these instructions were carried out, and the judge returned to the courtroom at the time designated to await the verdict of the jury, and, after...
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