Spell v. State, 25425
| Decision Date | 07 November 1969 |
| Docket Number | No. 25425,25425 |
| Citation | 225 Ga. 705,171 S.E.2d 285 |
| Parties | Kenneth Carol SPELL v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. After the special plea of insanity had been decided by a jury adversely to the appellant, it was not error for the trial judge to proceed with the trial.
2. The appellant was furnished the name of the witness appearing against him before the grand jury, and a list of the witnesses the State expected to use on the trial, and he was not harmed by any ruling made by the trial judge on his demand for a list of the witnesses for the State.
3. The instruction of the trial judge to the jury to disregard remarks made by the solicitor general in his closing argument amounted to a rebuke, and the instruction was sufficient to eliminate such statements from the consideration of the jury.
4. The newly discovered evidence was merely impeaching in character, and not such as would likely cause a different result on another trial, and it was not error to deny the motion for new trial on this ground.
5. The appellant concedes that the evidence was sufficient to support the verdict.
Gordon Knox, Jr., Hazlehurst, for appellant.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.
Kenneth Carol Spell appeals from his conviction of murder and sentence of life imprisonment, and from the denial of his motion for new trial, as amended.
1. The appellant enumerates as error the denial of his special plea to the arraignment. This plea asserted that: He filed a special plea of insanity, and a jury trying the issue found against the plea. His motion for new trial is pending, and should be disposed of prior to his arraignment on the indictment.
In Scoggins v. State, 150 Ga. 72, 102 S.E. 520, this court held that an accused person had no right of direct review from a finding against his special plea of insanity. The present appellate practice law authorizes a review only of a final judgment, except as to specified orders and judgments (which do not include a judgment on a special plea of insanity), unless the trial judge certifies an order, decision, or judgment for immediate review. Ga.L.1965, p. 18; Ga.L.1968, pp. 1072, 1073 (Code Ann. § 6-701). The appellant does not contend that the trial judge has certified the judgment on the insanity plea for immediate review.
The appellant argues that under the present appellate practice procedure an appeal from the finding on the insanity plea acts as a supersedeas, since the notice of appeal in civil cases serves as a supersedeas (Ga.L.1965, pp. 18, 22; Code Ann. § 6-1002), and this court in Bacon v. State, 222 Ga. 151, 153, 149 S.E.2d 111, held that the proceeding on a special plea of insanity is civil in nature. This argument overlooks the fact that the judgment in the insanity proceeding is not a judgment from which the appellant had a right of direct appeal unless the trial judge certified the judgment for immediate review.
The appellant relies on language in Brown v. State, 215 Ga. 784, 787, 113 S.E.2d 618, 620, where this court held that the accused was entitled 'to have such (insanity) plea disposed of legally before being arraigned on the indictment,' to support his plea to the arraignment. The question made in the present case was not in the Brown case. In the Brown case the accused had been convicted of murder and he appealed from that conviction, also assigning error on the denial of his motion for new trial on his insanity plea. It was held that an erroneous instruction on the insanity trial made it error to deny the motion for new trial in the insanity proceeding, and because of this antecedent erroneous ruling, the conviction was contrary to law.
The trial judge in the present case had a right to proceed with the trial after the insanity issue had been decided adversely to the appellant by the special jury, and there is no merit in the assignment of error on the denial of the plea to the arraignment.
2. Error is assigned on the court's ruling, in response to the appellant's demand for a list of the witnesses for the State, that the State is required to furnish the accused with a list of only those witnesses who testified against him before the grand jury.
The record shows that prior to arraignment the appellant filed a demand for a list of witnesses for the State. Counsel for the State, in response to this demand, furnished the appellant's counsel with the name of the witness who appeared before the grand jury, and a list of the witnesses that the State might call on the trial, concluding with the statement, 'and others as the case develops and as the defense unfolds.' Counsel for the appellant objected to the quoted portion of the response, asserting that the State should furnish the name of all witnesses it knew would be called. Counsel for the State replied that, 'depending on what the defendant may use as a defense, it may be necessary for us to seek others, we do not know.' The trial judge overruled the motion, stating that the State was required to furnish a list of only those witnesses appearing before the grand jury. It is asserted by the appellant that named witnesses were called on the trial whose names did not appear on the list furnished on his demand.
The Constitution, Art. I, Sec. I, Par. V (Code Ann. § 2-105) provides that a person charged with an offense against the laws of this State shall be furnished, on demand, with 'a list of the witnesses on whose testimony the charge against him is founded; * * *.' Prior to the 1966 amendment (Ga.L.1966, pp. 430, 431), Code § 27-1403 provided: 'Every person charged with an offense against the laws shall be furnished, on demand, previously to his arraignment, with * * * a list of the witnesses on whose testimony the charge against him is founded,' and this section was held by this court to mean a list of the witnesses who testified before the grand jury. See Green v. State, 223 Ga. 611, 612, 157 S.E.2d 257. The 1966 amendment added the following: 'Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear upon the list of witnesses as furnished to the defendant unless the solicitor or prosecuting attorney shall state in his place that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.'
Assuming, but not deciding, that this section as amended requires the State to furnish a list of all witnesses who will be used by the State on the trial within the knowledge of the prosecuting attorney, the response of the State purported to furnish such a list, and the ruling of the judge that the State was required to furnish a list of only those persons appearing before the grand jury against the appellant was not harmful to him.
No question is made by this enumeration of error as to the witnesses called by the State whose names were not on the list furnished to him. If the appellant desired to test their eligibility to testify, he should have invoked a ruling on this at the time their testimony was offered.
3. Error is assigned on the court's refusal to grant the appellant's motion for mistrial. In the closing argument to the jury the solicitor general stated that the jury should consider in their verdict 'how they would feel if their wife, their daughter, their child, or some member of the family had been killed and murdered as the Clance family was.'
The court recalled the jury and instructed them as follows: ...
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