Smalls v. State
| Decision Date | 13 October 1898 |
| Citation | 31 S.E. 571,105 Ga. 669 |
| Parties | SMALLS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. It was not, in the trial of a criminal case, erroneous to permit the state to introduce evidence of a portion only of a statement made by the accused at a previous trial, without requiring the state to prove "the entire statement on the former trial"; the court ruling that no part of the statement would be excluded, and the accused being given an opportunity to introduce "the entire statement, if desired."
2. When, in the trial of a murder case, there was evidence showing that the accused at the time of the homicide was a fugitive from justice, charged with burglary, and the solicitor general in his argument before the jury inadvertently referred to the accused as "a burglar," but immediately, and of his own motion withdrew this language, and stated that he merely intended to say the accused was "charged with burglary," and the judge followed up the correction thus voluntarily made by the solicitor general with appropriate instructions to the jury, the impropriety of applying to the accused the term first above quoted may properly be treated as having been cured, and therefore as constituting no cause for a new trial.
3. If evidence is admitted without restriction as to its applicability to the issues involved, counsel, in commenting upon it to the jury, has the right to draw from it any inference apparently reasonable and legitimate, and endeavor to convince the jury of the correctness of such inferences.
(a) That portion of the argument of the solicitor general of which complaint is made in the present case was not, in view of all the facts and circumstances in proof, improper.
4. Where, in a trial for murder, it was a seriously contested issue whether the fatal shot was fired by the accused or another, it would, of course, be erroneous for the judge to express or intimate an opinion that it was fired by the accused; but in determining whether or not a single sentence of the charge was, in this respect, objectionable, it is proper to consider the entire charge and all the instructions given in connection with this particular matter.
5. There was no error, while charging upon the statement made by the accused, in instructing the jury as follows:
6. Mere failure to have a verdict or verdicts previously rendered in the same case covered up or concealed from the jury will not in the absence of any request on the subject, be treated as error.
7. The requests to charge, so far as legal and pertinent, were so fully and fairly covered by the general charge given as to leave no room for doubt that the contentions of the accused therein embraced were understood and intelligently passed upon by the jury. Several of the requests were properly refused because giving them would have put the judge in the attitude of expressing an opinion upon contested issues of fact, or of requiring the state to carry a greater burden than the law imposes. The evidence, though conflicting, was amply sufficient to warrant the verdict.
Error from superior court, Chatham county; R. Falligant, Judge.
Abram Smalls was convicted of murder, and he brings error. Affirmed.
T. P. Ravenel and G. A. Mercer, for plaintiff in error.
W. W. Osborne, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.
The plaintiff in error has been thrice convicted of committing the crime of murder upon James C. Neve. The first two verdicts of guilty were set aside by this court. See 99 Ga. 26, 25 S.E. 614, and 102 Ga. 31, 29 S.E. 153. We are now to decide whether or not the court below erred in overruling the motion for a new trial filed by the accused after his third conviction. This motion contains numerous grounds. Some of them are verified absolutely by the judge, others with qualifications and explanations, and others still are not verified at all. Our rulings upon the material points presented for decision are set forth in the headnotes. In discussing them we will state in connection with each the pertinent facts as we gather them from the record, and in this connection it is proper to say that we treat as true the recitals of fact contained in the motion for a new trial so far only as they are certified to be true by the trial judge.
1. The state offered oral evidence of certain expressions used by the accused while making his statement at one of the preceding trials, the state contending that there was a conflict between the same and certain declarations which the accused had made in his statement at the pending trial. This evidence was objected to on the ground that it was not admissible without requiring the state to prove all that was said by the accused in his statement at the previous trial. The judge admitted the evidence thus offered by the state at the same time distinctly ruling that he would exclude no part of the former statement, and that the accused might prove the entire statement, if he so desired. In Lewis v. State, 91 Ga. 169, 16 S.E. 986, it was held that, a prisoner "having been previously tried for the same offense, his statement then made, conflicting with the statement on the subsequent trial, is admissible against him for the purpose of contradicting the latter." We do not think, however, that the state was obliged to introduce evidence showing the whole of the previous statement. The rule of evidence is that when an admission, conversation, or declaration previously made by a party or a witness is pertinent, the side tendering evidence as to the same is at liberty to prove such portion only thereof as is deemed material, and the other side may then bring out the whole of the admission, conversation, or declaration, so far as so doing may be essential in order to arrive at the true drift, intent, and meaning of what was said on the previous occasion. See Lowe v. State, 97 Ga. 792, 25 S.E. 676. It is clear that all the rights of the accused as to the matter in question were in the present instance fully guarded and protected by the ruling of which complaint is made.
2. There was evidence for the state showing that the accused at the time of the homicide was a fugitive from justice, charged with burglary. In commenting upon this evidence the solicitor general inadvertently characterized the accused as "a burglar." Before any objection to this language had been made by counsel for the accused, the state's officer withdrew his remark; explaining to the jury that he had used an expression he did not mean to employ, and what he really intended to say was that the accused was "charged with...
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...of what was then said by him may be correctly understood.' Lowe v. State, 97 Ga. 792, 794, 125 S.E.2d 676 (1895); Smalls v. State, 105 Ga. 669, 31 S.E. 571 (1898); Parrish v. State, 88 Ga.App. 881, 78 S.E. 366 (1953). In Parrish, supra at p. 882 (78 S.E. 366), the Court of Appeals, reviewin......
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... ... it would have been a legitimate statement as to the force and ... effect of such evidence had it been made during the course of ... the solicitor general's argument, as he would have had a ... right to draw from this evidence any inferences apparently ... reasonable and legitimate. Smalls v. State, 105 Ga ... 669(3), 31 S.E. 571 ... In view ... of the withdrawal of the remark by the solicitor general and ... the instructions by the court to the jury, we cannot see how ... the accused was injured ... 5 ... Ground 21 of the amended ... ...
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...304. Brown, 270 Ga. at 606, 512 S.E.2d at 265 (Hunstein, J., dissenting). 305. Id. at 606-07, 512 S.E.2d at 265 (citing Smalls v. State, 105 Ga. 669, 671, 31 S.E. 571 (1898)). 306. 233 Ga. App. 752, 505 S.E.2d 251 (1998). 307. Id. at 752-53, 505 S.E.2d at 253. 308. Id. at 753, 505 S.E.2d at......
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