Smith v. State

• Decision Date: 23 January 1947
• Docket Number: No. 31431,31431
• Citation: 41 S.E.2d 541
• Parties: SMITH . v. STATE.
• Court: Georgia Court of Appeals

41 S.E.2d 541

SMITH .

v.STATE.

No. 31431

Court of Appeals of Georgia,

Division No. 1.

Jan. 23, 1947

.

.

Rehearing Denied Feb. 20, 1947.

[COPYRIGHT MATERIAL OMITTDE]

Syllabus by the Court.

1. (a) Bias or prejudice is not cause for disqualification of a judge, under the provisions of our Code. A public prosecutor, with the consent of the court, may enter into an agreement with a confederate in crime that if he will testify fully and truthfully, against the other confederate or confederates, the witness will be granted immunity from prosecution. The judge who approves such an agreement does not thereby disqualify himself to try the other confederates.

(b) "All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters of legislative discretion."

2. The provisions of the Code, section 38-1806 that the testimony of a witness who swears wilfully and knowingly falsely is to be disregarded unless corroborated, where applicable, is required to be charged in the absence of a written request. But to make it applicable, it must appear, among other things, that the witness admit, on the trial, that he had wilfully and knowingly sworn falsely, or the testimony must be such as to render the purpose to falsify manifest.

3. "The prosecution here elected to charge a particular congruous offense at a particular time in each count, and the words in each count, 'the date herein alleged being an essential averment as to this transaction, ' make the date in each count essential to identify the particular transaction described in that count."

4. "Attorneys should be allowed all reasonable latitude in the argument of cases to the jury, provided they do not go outside the facts legitimately appearing from the trial, and lug in extraneous matters as if they were a part of the case."

5. The assignment of error in special ground 5 is without merit for the reasons given in the opinion.

6. The allowance of a leading question to be propounded to a witness, as a general rule, rests within the sound discretion of the court. There is nothing in the instant case to remove it from the general rule.

7. A witness may be sworn to testify in the trial of a case even though his name does not appear on the indictment at the time the case is called for trial, and where such witness did not testify before the grand jury and his name was not furnished on demand by the prosecuting attorney to the defendant.

8. Where the court fails to charge the jury as requested in writing, or after having given a written reqeust to charge withdraws such request, and afterwards in a recharge fairly and correctly gives to the jury substantially the law along the lines requested as far as applicable to the evidence, the failure to give the written request or its withdrawal after having given it, is not cause for a reversal.

9. Where the court in a recharge withdraws a portion of a previous charge and thereafter in recharge submits to the jury the law applicable to the facts of the case, and where the charge as a whole contains no repugnancy, the case will not be reversed.

10. There is no error in the assignment under special ground 11.

11. The evidence is sufficient to sustain the conviction, as to the general grounds.

Error from Superior Court, Fulton County; A. L. Etheridge, Judge.

Claude Smith was convicted of operating a lottery, and he brings error.

Affirmed.

Case transferred from Supreme Court to Court of Appeals, 39 S.E.2d 313.

The defendant was indicted on fifteen counts. The charges were for violationof the lottery statute, generally known as "the numbers game." On the trial of the case the defendant was found guilty on counts 10, 11, 12, 13, 14, and 15, and not guilty on the other counts. The counts on which the defendant was convicted were identical except as to the dates. Omitting the formal parts, count 10 alleges that the defendant "in the County of Fulton, State of Georgia on the 14th day of June, 1944, with force and arms, did keep, maintain, and operate a lottery, known as the number game, for the hazarding of money: the date herein alleged being an essential averment as to this transaction, --contrary to the laws of said State, the good order, peace and dignity thereof."

Count 12 on the 19th day of July; count

13 on the 9th day of August, 1944; count

14 on the 6th day of September, 1944; count 15 on the 9th day of October, 1944. The evidence is quite lengthy and we will not attempt to narrate it, but will, during the course of our opinion, refer to such portions of it as are necessary to discuss the questions involved.

Geo. G. Finch, of Atlanta, for plaintiff in error.

E. E. Andrews, Sol. Gen., Durwood T. Pye and Lindley W. Camp, all of Atlanta, for defendant in error.

GARDNER, Judge.

1. (a) When the case was called for trial and before pleading to the merits, the defendant filed a motion to disqualify judge Jesse M. Wood, judge of the criminal court of Fulton County. The motion to disqualify is:

"State of Georgia v. Claude Smith. Superior Court of Fulton County.

"Now comes the defendant in the above entitled case and before arraignment and pleading thereto, makes and files this his objection to the Honorable Jesse M. Wood, presiding in said case and for grounds of same says as follows:

"1. That it will be impossible to secure a fair trial before said Judge because of interest, prejudice and bias as will hereinafter more fully appear.

"2. That as this defendant is tried before said judge presiding, the said trial will be coram non judice in that defendant will be denied process of law and equal protection under the 14th Amendment of the Constitution of the United States by reason of the fact that petitioner will not be afforded a legal trial before a fair, impartial and unbiased presiding judge.

"3. Defendant shows that said judge has heretofore on the 26th day of March, 1945, released from serving a sentence on the chain gang of Georgia one Eddie Lee Seals on the grounds that this indictment against this defendant having been procured on the testimony of said Eddie Lee Seals, and said Eddie Lee Seals had expressed a willingness to testify against this defendant on the trial of this case.

"4. Defendant shows that by reason of said order certified copy of which is attached and made a part hereof, said judge disclosed his interest, prejudice, and bias, against this defendant in that by said order releasing said Eddie Lee Seals from the sentence heretofore imposed on him in consideration of his testifying both before the grand jury and against this defendant in the trial of this case before the said judge, all of which will prevent this defendant from having a fair trial and will deny to this defendant due process of law under the 14th Amendment of the Constitution of the United States.

"5. Defendant alleges that the Honorable Jesse M. Wood has thus stepped aside from his judicial duties as a fair and impartial judge, and become a prosecutor against this defendant in this case.

"6. Defendant alleges that the witness, Eddie Lee Seals, is thus under coercion and duress, in that as said order provides the sentence is suspended at the discretion of the court and until further order of the court.

"7. Defendant alleges that the threat and implication is thus plain that in the event the witness do not testify against this defendant, the court will or may revoke the suspension and place said witness back in the chain gang of Georgia.

"Wherefore, defendant prays that the court recuse himself in the trial against this defendant."

The order referred to is as follows: "State v. Seals No. 188774. Criminal Court of Fulton County Sentence of Twelve Months.

"It appearing to the court that the above named defendant did, at the March-April Term, 1945, of the Superior Court of Fulton County, appear as a witness before the grand jury in the case of the State v. Claude Smith, and that upon defendant's evidence, an indictment was returned against said Claude Smith.

"And it further appearing to the court that upon said indictment being returned and transferred to the Criminal Court of Fulton County, defendant herein not only testified before the grand jury, but showed a willingness also to testify for the State in said case.

"And it further appearing to the court that it is to the best interest of society and in line with the public policy of the State to extend immunity to witness who turn State's evidence.

"It is therefore, considered, ordered and adjudged that the remainder of the sentence originally imposed in the case of the State v. Eddie Lee Seals be, and the same is hereby suspended at the discretion of the court until further order of the court.

"And it is further ordered that A. B. Foster, Sheriff, release said prisoner, this the 26th day of March, 1945. [Signed] Jessie M. Wood, Judge, Criminal Court of Fulton County."

It is alleged in the certiorari that the trial judge was without authority of law to release Seals by such order or in any other manner; that this authority is vested exclusively in the Prison Board of the State of Georgia. It does not appear from the motion to disqualify or from the order of Judge Wood, copied above, (1) in what court Seals was convicted; (2) if he was convicted in the criminal court of Fulton County, it does not appear that the term of court at which he was convicted had expired and the case had passed out of th*: breast of the court; (3) it does not appear that Seals was released under the order of Judge Wood; (4) it does not appear that he (Seals) testified in the instant case (5) there was no testimony introduced on the motion to disqualify.

We will therefore not discuss these features, but will direct our remarks to the question as to whether the motion to disqualify and the certified order of the court attached thereto is sufficient as a matter of law to disqualify Judge Wood. The only statutory...