Smith v. State, 25114
| Decision Date | 22 May 1969 |
| Docket Number | No. 25114,25114 |
| Citation | 225 Ga. 328,168 S.E.2d 587 |
| Parties | Ronald Lee SMITH v. The STATE. |
| Court | Georgia Supreme Court |
Garland & Garland, Reuben A. Garland, Edward T. M. Garland, Atlanta, for appellant.
Andrew J. Whalen, Solicitor Gen., Griffin, Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
The accused was indicted, tried and convicted of the crime of murder. He thereafter filed a motion for a new trial which was subsequently amended, and after a hearing denied. The appeal is from the conviction and sentence of death, with error enumerated in nineteen separate complaints on the allowance of evidence, charge of the court, and denials of motions, including the motion for new trial as amended. Held:
1. Even though the jury box contained the names of persons 65 years or older, who had not requested in writing to serve on the jury, this was not grounds for the defendant to object since this fact alone would not work the disqualification of a juror. See Code Ann., Ch. 59-1 (). Code Ann., § 59-112, as amended (see above) not only does not disqualify the classes there mentioned, but merely grants them the privilege of being left out of the jury box unless they signify a willingness to serve. This provision is solely for the benefit of those in the classes but allows them to express a willingness to serve. Thus they are not ineligible to serve, and litigants must accept them as jurors if they decide to serve, unless they are excused or rejected on one or more of the grounds provided by law. There is no merit in this complaint; hence neither the motion to dismiss and quash the indictment nor the challenge to the array of traverse jurors has substance. See also Cash v. State, 224 Ga. 798, 164 S.E.2d 558.
2. The various items recited in support of the motion for a change of venue did not show an inability of the defendant to get a fair trial. The examples of publicity presented in this case do not show a prejudice of the minds of all the people and jurors, and we hold that it did not violate any of the defendant's rights. No grounds for sending the case to another county appear. Rawlins v. State, 124 Ga. 31, 40(2), 52 S.E. 1; Anderson v. State, 222 Ga. 561(2), 150 S.E.2d 638. Nor was there error in not giving defendant's counsel more time to question a State's witness. The court was liberal beyond legal requirements in allowing the interview made.
3. The order of the court directing the clerk not to file the notice of appeal from the overruling of appellant's motion for a change of venue was erroneous since the court has no such authority. The motion for a change of venue was based solely on the ground that a fair and impartial jury could not be obtained in the county in which the indictment was returned. Under the rulings of this Court in Coleman v. George, 140 Ga. 619(2), 79 S.E. 543 and Anderson v. State, 190 Ga. 455, 457, 9 S.E.2d 642, the overruling of such a motion did not constitute an appealable judgment. Therefore, any appeal which might have been filed and brought to the Court of Appeals from that ruling would have been premature and subject to be dismissed. Defendant has asserted in this appeal his contentions with respect to the merits of his motion. Under these circumstances this ground of enumerated error does not show harmful error.
4. There being evidence to support the jury verdict, the general grounds of the motion for a new trial are without merit. Curtis v. State, 224 Ga. 870, 875, 165 S.E.2d 150.
5. The court did not abuse its discretion in refusing to allow the examination of prospective jurors one at a time out of the presence of each other.
6. There was no showing that the bailiffs having charge of the jury were not sworn, and there is no merit in this complaint.
7. In this case, the witness, Carol Jean Cone Smith, and the defendant appear to have been living together as man and wife. She had also been indicted for the same offense for which the defendant was on trial. She voluntarily testified against him. Her testimony was in part to the effect that the defendant had her call the deceased on the telephone and arrange for the deceased to meet her at some place; that she did this 'because he threatened me'; that she drove her automobile and met the deceased who was driving his automobile pursuant to that arrangement; that the defendant was lying down in the back seat of her car and had a gun, a .32 automatic; that after meeting the deceased they drove their respective automobiles to another and more isolated location, and the deceased got out of his automobile and came back to her automobile, whereupon the defendant got out of the automobile with the pistol in his possession and compelled the deceased to remove the spare tire from his automobile and place it in her automobile; and that after taking the deceased to another location the defendant tied the deceased's hands and feet while the witness held the gun, and after taking his billfold, the defendant shot the deceased. She testified that the only reason that the defendant gave her for having her call the deceased to meet her was that they needed a tire. No testimony had been elicited from her on direct examination concerning her relationship with or knowledge of the deceased, either prior to or subsequent to her marriage to the defendant, nor was any such testimony elicited from her on direct examination concerning her relations with or knowledge of other men prior to the claimed marriage between the witness and the defendant. She testified on cross-examination that she had not been with any other boys or men, including the deceased, and had not even seen the deceased in the year 1967 prior to the night the defendant had her to call him. On cross-examination, counsel for the defendant sought to elicit from this witness testimony in the nature of admissions concerning improper relations, not only with the deceased, but with several other named men, both before and after her marriage to the defendant. The witness denied improper conduct with the deceased, subsequent to her marriage to the defendant, but did admit having had sexual relations with at least one other man prior to her marriage. However, with respect to the deceased, she refused to say that she had had any such relations with him, upon the ground that it might tend to incriminate her. Counsel for the defendant then moved to exclude her entire testimony. The court overruled that motion, and that ruling is the one enumerated as error in ground 15 of the enumeration of errors.
Cited in support of the position of the appellant on this enumeration of error are the cases of Pinkard v. State, 30 Ga. 757; Young v. State, 65 Ga. 525; McElhannon v. State, 99 Ga. 672, 26 S.E. 501; Hays v. State, 16 Ga.App. 20, 21, 84 S.E. 497, and Pilcher v. State, 93 Ga.App. 605, 608, 92 S.E.2d 318. None of these cases supports this contention. The true rule is that when a witness declines to answer on cross-examination certain pertinent questions relevant to a matter testified about by the witness on direct examination, all of the witness' testimony on the same subject matter should be stricken. Hays v. State, supra, and Boyett v. State, 16 Ga.App. 150, 84 S.E. 613. The witness' claim of privilege against self-incrimination in this case was with respect to matters sought to be elicited on cross-examination which were wholly collateral to and unrelated to her testimony in chief, and was with respect to separate transactions, in no way shown by her testimony, to be connected with the crime with which the defendant here was charged. In Pinkard v. State, 30 Ga. 757(2), supra, the ruling was merely that the court should have ruled out the testimony as to the whole of the conversation in which the witness had participated when he refused to testify on cross-examination as to all he had to do with the transaction involved. In Young v. State, 65 Ga. 525, 527, supra, the ruling was merely to the effect that the particular conversation should be excluded from the jury if the witness on cross-examination should invoke the privilege of freedom from self-incrimination with respect thereto. In McElhannon v. State, 99 Ga. 672, 681(2), 26 S.E. 501, 505, supra, the defendant was indicted for mutilating and destroying certain books of account of a corporation for the purpose of defrauding the corporation. A witness for the State was permitted to testify under direct examination that the accused had been seen gaming, the theory on which this testimony was admitted being to show motive for the act with which the accused was charged. On cross-examination, this witness declined to reveal the identity of the person with whom the accused had been gaming on the ground that to do so might tend to incriminate him. The ruling of the court was that it then became 'the right of the accused to have all of the witness's testimony on this subject ruled out.' (Emphasis supplied) The same was the ruling in Hays v. State, supra. In the case of Pilcher v. State, 93 Ga.App. 605, 608, 92 S.E.2d 318, the Court of Appeals volunteered, in what is clearly obiter dictum, the statement that where a witness had testified as to a particular transaction but had kept silent on the ground of self-incrimination on cross-examination, a proper and timely motion to rule out the witness' entire testimony should be sustained, but that since such a motion was not made in the case, no ruling in that regard would be required. The court there stated that such a motion was made in the McElhannon case, and cited it as authority for the statement. However, an examination of the McElhannon case will show that it is not authority for that statement, and to the extent that the Pilcher case extends the rule beyond its...
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