Swain v. State
| Decision Date | 25 September 1926 |
| Docket Number | 5021. |
| Citation | 135 S.E. 187,162 Ga. 777 |
| Parties | SWAIN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A juror who is opposed to capital punishment, regardless of what may be his opposition to this mode of punishment, is incompetent to try a case in which capital punishment may be inflicted.
The testimony to which objection was made in the second and fifteenth grounds of the motion for a new trial was admissible, as a part of the res gestae, and to show motive.
It was not error to exclude testimony as to an alleged statement of the deceased, to the effect that he had "made away with" money of the defendant, it not being made to appear that the defendant was informed of the statement or aware of the alleged theft.
The admission of the evidence of which complaint is made in the fourth ground of the motion was not error, because it was competent in rebuttal of testimony introduced in behalf of the defendant.
The admission in evidence of the license authorizing the marriage of the deceased and a witness for the state, as well as the certificate from the War Department of the service record of the defendant, affords in this case no ground for the grant of a new trial.
As a general rule, the right to object to an abridgment or denial of the right to a fair and orderly trial, or to protest any occurrence which may infringe upon this right or tend to prejudice the cause of one accused of crime, must be asserted at the first opportunity after the occurrence. The failure of the defendant to immediately call the attention of the court to a known violation of rights whereby he may be deprived of a lawful trial may be treated as a waiver of the right to object, and authorize the implication that he elects to take the chances, before the jury impaneled, of an acquittal in the trial then pending, rather than face the consequences of another trial should a mistrial be declared. In this state one accused of crime may at his option waive any right guaranteed him by law.
"It is not error in the court to state a fact as a fact to the jury which is admitted by counsel in defense and on which there is no issue." In the present case, it being admitted that the defendant shot and killed the deceased, the instruction, "The killing in this case would be murder if the jury should find that it was [for] the purpose of avenging some past wrong; the law being that a man has no right to take the law in his own hands and avenge a past wrong by killing a person that he thinks guilty of such wrong, whether it be a real wrong or a fancied wrong, and that would be true regardless of the nature of the wrong however heinous the wrong may be,"-is not subject to exception as an expression or intimation of opinion upon the evidence, when the excerpt is considered in connection with its context. Nor can the exception that such charge is not authorized by the evidence be sustained.
The accused having requested, in advance of the charge of the court, instructions upon the subject of insanity, is estopped to except to correct charge upon that subject upon the ground that there was no evidence to support such instructions.
In the absence of testimony tending to show that the will of the accused was overmastered by a delusion, it was not error to decline to instruct the jury on "the law of delusional insanity."
The court did not confuse the law of voluntary manslaughter wit the law of justifiable homicide as embodied in sections 70 and 71 of the Penal Code, nor did he confuse the law of voluntary manslaughter with the law of self-defense as embodied in section 73 of the Penal Code by instructing the jury as complained of in the eleventh ground of the motion for a new trial.
The requested instructions as set forth in the thirteenth and fourteenth grounds of the motion were not adjusted to the evidence, and were properly refused. The defendant having stated to the jury that his mind became a blank prior to the fatal shooting, and it appearing that for that reason he was unable to state what further occurred until a considerable period of time had elapsed after the homicide, it was not error for the court to permit the state in rebuttal to offer testimony tending to show the sound mind of the accused. In these circumstances, correct instructions to the jury upon the subject of insanity as applicable to the evidence in the case, in which the jury were charged that if they had any doubt as to the sanity of the accused he should be acquitted afford no such ground of complaint to the accused as would warrant a new trial.
The alleged newly discovered evidence was not of such nature as to require the grant of a new trial.
The court did not err in instructing the jury as set forth in the twenty-fourth ground of the motion for a new trial.
The fifth, twelfth, sixteenth, and twenty-third grounds of the motion, not being referred to or argued in the brief, must be treated as abandoned.
The evidence authorized the verdict.
Additional Syllabus by Editorial Staff.
It is not error, where testimony is objected to as a whole and any part of it is admissible, to overrule objection as not properly made.
Error from Superior Court, Bibb County; H. A. Mathews, Judge.
J. A Swain was convicted of murder, and he brings error. Affirmed.
W. O. Cooper, Jr., of Macon, R.I. Stephens, of Wauchula, Fla., and J. R. Terrell, of La Grange, for plaintiff in error.
Chas. H. Garrett, Sol. Gen., of Macon, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
1. The plaintiff in erro was tried for the offense of murder, it being alleged in the indictment that he killed J. Walter Johnson on December 16, 1924, by shooting him with a pistol. The defendant was found guilty, without recommendation. He made a motion for a new trial, which was overruled. He excepted upon various grounds hereinafter stated. Without recapitulation of the evidence, which has been carefully considered, it cannot be held that the evidence in behalf of the prosecution is insufficient to authorize the conviction of the accused, though there was testimony in behalf of the defendant which, if credible to the jury, would have sustained his plea of self-defense and would have authorized the jury to acquit him. So it cannot be held that the judge erred in overruling the three general grounds of the motion for a new trial, unless it appears from the remaining assignments of error that the verdict of guilty was induced by errors in the trial, as alleged in the special grounds of the motion for a new trial. Twenty-four grounds are contained in the amendment to the original motion. For the sake of convenience, and following the subdivision made by counsel for plaintiff in error, we shall group some of the assignments of error, and consider the case as presenting in one way or another 13 reasons why the plaintiff in error, according to his insistence, should be granted another trial.
In the first special ground of the motion complaint is made that certain jurors were disqualified, because in answer to the voir dire question, "Are you conscientiously opposed to capital punishment?" they replied that they "were, in case of circumstantial evidence." As qualified by the note of the trial judge, this ground of the motion, not being approved, presents nothing for our consideration as to one of the jurors. This confines our inquiry as to whether there was error in standing aside for cause the jurors Parmenter, Holmes, and Long, because they answered they were opposed to capital punishment on circumstantial evidence. The court did not err in its ruling. Where the capital punishment can be inflicted, a juror who is opposed to capital punishment is incompetent to try such a case. The exact point was expressly ruled in Smith v. State, 146 Ga. 76, 90 S.E. 713; and in Mickens v. State, 149 Ga. 185, 99 S.E. 779, it was held:
The ruling in Bell v. State, 91 Ga. 15, 16 S.E. 207, has no bearing upon the point sub judice.
2. In the second and fifteenth special grounds of the motion the plaintiff in error insists that the court erred in admitting the evidence of William Branan and Mrs. Gregory, as set forth in said grounds, for the reason that this evidence was immaterial, irrelevant, and prejudicial to the defendant, and tended to show a separate and distinct transaction or crime for which the defendant was not then on trial. It is argued that the testimony of William Branan (second ground) and Mrs Gregory (fifteenth ground) to the effect that after the defendant shot the deceased he backed his car out and went rapidly to 17 Hill Park, and, when he got up there, without a word he shot his wife twice and shot his wife's mother and then tried to shoot himself, was ...
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