Sides v. State, 19756
| Decision Date | 12 September 1957 |
| Docket Number | No. 19756,19756 |
| Court | Georgia Supreme Court |
| Parties | George D. SIDES v. The STATE. |
Syllabus by the Court
For the reasons given in division one of the opinion, it was error to deny the defendant's motion for new trial.
The defendant was indicted in Muscogee County for the rape of an eight-year-old girl. The attack took place in September, 1956, but the defendant was not apprehended and identified as the attacker until sometime in January, 1957, following an incident involving another eight-year-old girl. The instant case involves the defendant's trial for rape which grew out of the attack upon the prosecutrix in September, 1956. At the trial the prosecutrix testified: that the defendant picked her up in his car as she was walking home from school; he drove to a race track and turned around and finally to a place where there was some water; there the attack occurred; the defendant then drove back and let her out of the car; she ran home and told her mother. The child's mother testified that the child's clothes were bloody when she came home. The child was taken to a hospital. A physician who examined her testified as to the evidence of rape which an examination of the child disclosed. An officer of the Military Police stationed at Fort Benning testified that the victim pointed out the place where the attack occurred, which was near the Chattahoochee River; and that a part of the child's underclothing was found at the scene. The defendant introduced several witnesses, who testified as to his good character. He then made a statement in which he denied any knowledge of the crime. Following his statement, the State introduced two witnesses, who testified that they were working at a race track in Columbus on the day the crime was committed; that the defendant, with the prosecutrix in his car, drove into the race track and passed within 20 to 40 feet of the witnesses; that they saw him clearly and saw the prosecutrix with him; that a short time before the trial they were taken to the police station, and there they picked the defendant out of a lineup of three or four men. Another eight-year-old girl was introduced as a witness for the State, and she testified that in January, 1957, the defendant had picked her up in his car; that he had driven into some woods; that his car got stuck in the mud; that some colored people came by and he asked them for a shovel; that he told her to go to the highway and wait for him; that she walked to the highway and kept walking until a man and his wife came along and picked her up and called the police; that the police came and she told them what had happened; that she took them to where the defendant was stuck in the mud and the police arrested him. A county detective of Muscogee County testified that he had talked with the defendant, and the defendant had admitted kidnapping the second girl, and stated he knew he would have to pay for it, but denied raping the prosecutrix. The defendant made a supplemental statement concerning the girl whom he had picked up in January, 1957, in which he admitted that he picked her up, that he drove into the woods and got stuck in the mud, that the little girl was crying, that some Negroes came along, and that he let the girl go.
The jury returned a verdict of guilty without a recommendation of mercy. The defendant's motion for new trial on the general grounds and ten special grounds was denied, and he excepts.
Ernest C. Britton, Columbus, H. J. Hatcher, Morganton, N. C., for plaintiff in error.
John H. Land, Sol. Gen., Columbus, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.
1. In special ground 1 error is assigned upon the failure of the trial court to grant a motion for continuance. On the day of the defendant's trial for rape, the solicitorgeneral formally arraigned the defendant for three offenses, to wit: rape, molesting a minor, and kidnapping. To each of the charges the defendant entered his plea of not guilty. This entire proceeding took place in the courtroom, in the presence of the jurors who were to subsequently try the defendant for rape, and before the jury had been impaneled and sworn. Counsel for the defendant made a motion for a continuance upon the ground that it was prejudicial and harmful to the defendant to be arraigned on three different offenses at the same time and required to plead thereto, all in the presence and hearing of the jurors who were to try him, they being thus informed of multiple charges of felonies against him. A colloquy ensued between the trial judge and counsel for the State and the defendant. The trial judge denied the motion and did not instruct the jury to disregard the other indictments against the defendant.
Code, § 27-1301 provides that 'The cases on the criminal docket shall be called in the order in which they stand on the docket, unless the defendant be in jail, or otherwise in the sound discretion of the court.' While, under this section of the Code, the trial judge is vested with a discretion as to the order in which the cases upon the docket shall be called before him for trial, this section does not, as contended by the State, vest in the solicitor-general the right to arraign a defendant, read to him the indictment against him, require him to plead thereto, and, upon receiving the prisoner's plea of not guilty, thus forming the issue between the prisoner and the State, proceed further to read two more indictments against him involving different offenses, and receive pleas of not guilty thereto. Code, § 27-1405 provides that, 'If the prisoner, upon being arraigned, shall plead 'not guilty' * * * such arraignment and plea shall constitute the issue between the prisoner and the State.' The solicitor general in the instant case stated that he knew he could not have tried the defendant upon all three indictments without the defendant's consent, and clearly he could not; but it is contended that it is his duty to present all charges against the defendant in the event the defendant pleaded guilty, so as to dispose of all cases. But, under Code, § 27-1405, supra, the defendant's plea of not guilty to the first indictment formed an issue to be tried by the jury, and it was the duty of the State to try him upon that issue alone without in effect announcing to the prospective jurors that there also existed other indictments against this defendant for other crimes. While 'an indictment is a mere charge or accusation by a grand jury, and is no evidence of guilt' (McCray v. State, 134 Ga. 416, 425, 68 S.E. 62, 66), the fact that a defendant is also under indictment for one or more other crimes than the one for which he is on trial would tend to impress upon the jury that he is more likely to be guilty in the case under consideration and thus to effectively deprive him of the right to enter upon his trial with the presumption of innocence in his favor. It would have been error to have permitted the other indictments to be introduced in evidence in the rape case, and it was error to read such indictments in the presence and hearing of the prospective jurors. In Perdue v. State, 135 Ga. 277, 281, 69 S.E. 184, 187, it was stated: 'If counsel was of the opinion that the remarks quoted, [of the court] * * * which it is insisted were prejudicial to the cause of his client, were of such a character as to influence the minds of the jury prejudicially to the cause of the defendant, he should have moved for a postponement of the case until other jurors could be empaneled to try the same, or, if the jury which actually tried the case had been empaneled and sworn in this particular case, a motion should have been made for a mistrial, and the judge's refusal to declare a mistrial, or to postpone the trial until other jurors could be empaneled, could have been made matter for exception.' See also Blackston v. State, 209 Ga. 160(1), 71 S.E.2d 221. The defendant having received the death penalty in this case, it cannot be said that the error complained of in this special ground was harmless. We therefore hold that the trial court erred in denying the defendant's motion for a continuance.
2. Special ground 2 excepts to a remark of the trial judge made during a discussion as to the sequestration of witnesses when the rule was invoked by the State. The solicitor-general requested that the child's mother be permitted to remain in the courtroom with the child. The trial judge stated, 'In allowing to let her stay in the room that this was a little unusual because of the age of the child and the strange surroundings of the courtroom, maybe the child should have the benefit of her mother's being present.' Defendant's counsel objected to allowing the mother to stay...
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