Strickland v. State

• Decision Date: 01 April 1902
• Citation: 41 S.E. 713,115 Ga. 222
• Parties: STRICKLAND et al. v. STATE.
• Court: Georgia Supreme Court

41 S.E. 713

115 Ga. 222

STRICKLAND et al. v. STATE.

Supreme Court of Georgia

April 1, 1902

Syllabus by the Court.

1. The provisions of Civ. Code, § 5541, as amended by the act of 1898 (Acts 1898, p. 59), which declare that, while exceptions pendente lite must generally be tendered during the term, if the court adjourns within less than 30 days from the date of the ruling complained of such exceptions may be tendered within 60 days from the date of such ruling, apply to criminal as well as civil cases, and rulings made prior to verdict, as well as rulings made after verdict and at any time before final judgment is entered in the case, may be made the subject of exceptions pendente lite.

2. When, in the trial of a criminal case, after the jury have retired to consider the case, they return into court, and state that they are unable to recollect the testimony on a given point, and, in effect, request information from the court as to what was the testimony on this point, there is no error in allowing a witness who had been sworn in the case to be recalled, and to restate his testimony on the point in question.

3. While it is the safer and wiser practice for trial judges in charging upon the effect to be given the statement of the accused in a criminal case simply to read to the jury the section of the Code bearing upon this subject, without further comment, it is not error to make appropriate comments upon the effect to be given to the statement, provided the language used in so doing is itself free from error.

4. The alleged newly discovered evidence was impeaching in its character, the evidence authorized the verdict, and the judge did not err in refusing to grant a new trial.

Error from superior court, Bartow county; A. W. Fite, Judge.

Joe Strickland and Charley Badger were convicted of gaming, and bring error. Affirmed.

Jas. B Conyers, for plaintiffs in error.

Saml. P. Maddox, Sol. Gen., for the State.

COBB J.

Joe Strickland and Charley Badger were placed on trial upon an indictment charging them with the offense of gaming, and were convicted. They made a motion for a new trial, which was overruled, and the case is here upon a bill of exceptions assigning error upon the judgment overruling the motion for a new trial and upon other rulings which will be hereinafter referred to.

1. The motion for a new trial was filed during the term at which the verdict was rendered, and when the rule nisi thereon was granted counsel for the accused requested that the court should grant an order superseding the sentence until the motion for a new trial was heard and decided. The court refused to grant a supersedeas unless each of the accused would give bond with good security in the sum of $200 for their appearance to answer the final judgment rendered in the case. On December 23, 1901, counsel for the movants tendered to the presiding judge a bill of exceptions pendente lite assigning error upon his refusal to grant a supersedeas pending the motion for a new trial, the bill of exceptions reciting that the term at which the trial was had began on the 4th day of November, 1901, and finally adjourned on the 15th day of that month. The judge declined to certify this bill of exceptions, making thereupon the following entry "The foregoing being read and considered, the same is disallowed." The accused assign error upon the refusal of the judge to certify this bill of exceptions. It does not appear from the record that the judge placed his refusal to certify the exceptions upon the ground that any averments therein were untrue, but it appears that his refusal to do so was upon the ground that he had no authority to entertain at that time such exceptions. Section 5541, Civ. Code, as amended by the act of December 20, 1898 (Acts 1898, p. 59) provides that: "Exceptions tendered before the final judgment, for the mere purpose of being made a part of the record, shall be certified to be true by the judge, and ordered to be placed on the record. Such exceptions must be tendered during the term. But, if the court shall adjourn within less than thirty days from the date of the ruling complained of, such bills of exceptions, pendente lite, must be tendered within sixty days from the date of the order, decision or ruling complained of." This provision of the law applies to both civil and criminal cases, and any ruling made during the progress of a criminal case may be made the subject of exceptions pendente lite. See, in this connection, Herz v. Frank, 104 Ga. 638, 30 S.E. 797, (1, 2). The judge therefore erred in not certifying the bill of exceptions pendente lite. But this error will not have the effect of reversing the judgment overruling the motion for a new trial, for the reason that the error assigned in the bill of exceptions pendente lite was the refusal of the judge to grant a supersedeas while the motion for a new trial was pending, and, as the motion has been disposed of, no practical benefit from a reversal of this judgment would result to the accused. The judge should have granted a supersedeas, it being provided by law that, whenever the accused in a criminal case is convicted, and makes a motion for a new trial, the judge shall grant an order superseding the sentence, when requested to do so by the accused or his counsel. Acts 1899, p. 77. It is due to the presiding judge to say that it was stated in the argument here by the solicitor general in the presence of counsel for the accused, who, by his silence, apparently concurred in the statement, that the attention of the judge was not called to the provisions of the act of 1899 at the time he refused the request to grant the supersedeas; and that, as soon as his attention was called to the provisions of this act, he passed an order granting a supersedeas, to take effect from that time.

2. One ground of the motion for a new trial alleges that after the jury had retired to consider the case, and had been in the jury room for some time, and were unable to agree upon a verdict, they returned into court, and one of the jurors announced to the court that the difficulty in arriving at a verdict was due to the fact that no member of the jury had any recollection of any witness having testified that the game proven to have been played by the accused was played for money; and over the objection of the accused the court permitted a witness who had been examined before the jury to be recalled, and to testify, in substance, that the accused were playing and betting at a game of cards for money. It appears from the brief of evidence that this witness had testified in substance that the accused were on the floor before the fire playing a game of cards called "skin" for money; that there were 75 cents in money on the floor for which they were playing. When recalled at the time above referred to, it appears from the record that he testified as follows: "I saw seventy-five cents on the floor, and Charley Badger took up fifty cents of the money." In the case of Judge v. State, 8 Ga 173 (5), it was held that when the evidence on the part of the prosecution is closed, and the case submitted to the jury on both sides, further evidence cannot be admitted in behalf of the prosecution. In the opinion Judge Warner says: "We are not aware of any rule or practice on the trials of criminal causes which would authorize the prosecution to introduce evidence against the defendant after the cause had been submitted to the jury on both sides." It seems from the record in that case that the evidence objected to was offered just before the judge began his charge to the jury, and after counsel had either concluded their argument, or had announced that there would be no argument to the jury. In the case of Crawford v. State, 12 Ga. 142, 147, while the question of reopening the case for the admission of...