Smoot v. State

• Decision Date: 15 November 1916
• Docket Number: 57.
• Citation: 90 S.E. 715,146 Ga. 76
• Parties: SMOOT v. STATE.
• Court: Georgia Supreme Court

90 S.E. 715

146 Ga. 76

SMOOT v. STATE.

No. 57.

Supreme Court of Georgia

November 15, 1916

Syllabus by the Court.

It was error requiring a new trial to refuse to grant a mistrial on account of remarks of counsel for the state in regard to bad character of the accused, when he had not put his character in issue.

Other grounds of the amendment to the motion for new trial are without merit, and not of such character as to require elaboration.

Error from Superior Court, Spalding County; S. P. Gilbert, Judge.

Curtis Smoot was convicted of murder, and brings error. Reversed.

W. H Beck and W. H. Connor, both of Griffin, for plaintiff in error.

E. M Owen, Sol. Gen., of Zebulon, J. J. Flynt, of Griffin Clifford Walker, Atty. Gen., and Mark Bolding, of Atlanta, for the State.

ATKINSON J.

1. Curtis Smoot was on trial for the murder of Will Tom Jones. The defendant had not put his character in issue, but the associate counsel for the state, while making his concluding argument before the jury, used the following language:

"Gentlemen of the jury, the defendant's counsel argues to you that the character of Will Tom Jones was bad. Why did they not put their client's (Curtis Smoot's) character in issue? They know why. They dared not do so; they knew that we would overwhelm them with evidence to show that Smoot's character was worse than the character of the man killed--it was blacker than the character of Will Tom Jones."

Before these utterances were completed, the judge attempted to suppress counsel, but failed to do so. The attorneys for the defendant immediately moved for the court to grant a mistrial, on the ground that the remarks were improper, which motion was overruled; and one of the grounds of the motion for new trial complains of that ruling. In a note to this ground the judge made the following statement:

"The court ruled that the argument of the counsel for the state was improper, and reprimanded him, stating that it was an infraction of the rules of court, and, if repeated, a mistrial would be granted. The court instructed the jury not to regard the statements of counsel for the state complained of--'that the defendant failed to put his character in issue, and dared not do so, and that the state could produce overwhelming evidence to show that his character was not as good as the man he killed, and was blacker than his.' The court further instructed the jury that, in the absence of proof of bad character by the defendant, it must be presumed that there was nothing derogatory to his character. A second time the court instructed the jury not to consider the statements complained of, made by counsel."

In Penal Code, § 1019, it is declared:

"The general character of the parties, and especially their conduct in other transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct."

In Bennett v. State, 86 Ga. 401, 12 S.E. 806, 12 L.R.A. 449, 22 Am.St.Rep. 465, the accused had not put his character in issue, but during the argument the counsel for the accused reiterated repeatedly (1) his personal conviction that the accused was an honest man, a man of good character, and that nothing criminal had ever been charged against him; (2) that the accused was of as good character and stood as well in the community as did Bowers, one of the witnesses for the state; (3) that Duncan, a witness for the state, was a man of good character and had employed accused for six years, and would not have done so if accused had been a thief; (4) that accused stood well among his neighbors, and was regarded where he lived as an honest man and one of good character, so far as the evidence in the case disclosed. In reply to this argument the attorney for the prosecution argued that the accused had a bad character; that he had a right to prove his good character, and had not done so. The defendant objected to this, and requested the court not to allow it. The court stated that the argument was proper, and that he would allow it to proceed. This ruling was complained of in the motion for new trial, and was held to be erroneous. The ruling of the Supreme Court, as announced in the headnote, was as follows:

"Although, when no evidence as to the prisoner's character has been introduced, his counsel argues that his character and reputation are good, it is reversible error to allow the state's counsel to argue in reply, over objection, that, as the prisoner has not introduced such evidence, it must be because he has no such reputation."

In the course of the opinion, Simmons, J., elaborately discussed the law, showing the error of allowing discussion of the character of the accused when he had not put it in issue, and pointing out that the fact that the defendant's counsel may have discussed the character of the accused from the standpoint that it was good would not authorize the attorney for the prosecution to discuss it from the standpoint that it was bad. In regard to this feature of the case, among other things, it was said:

"We hold that the court erred in allowing the state's counsel, over the objection of the prisoner's counsel, to make this argument to the jury, although the latter had first violated the rules of court by going outside of the evidence. The fact that the prisoner's counsel had violated the rule would not authorize the state's counsel to do likewise. To hold that, because counsel on one side violates a rule of court in his address to the jury by making statements outside of the evidence, the opposing counsel has the right to violate the rule in like manner, over objections of opposing counsel, would be to turn a court, where justice should be administered according to the rules of evidence and of law, into a town meeting. We could as well hold that, if the prisoner's counsel introduces illegal evidence, the state's counsel can reply by introducing other illegal evidence; and this, we have held, cannot be done."

The ruling in this case is authority for the proposition that, in the case...