Tanner v. State

• Decision Date: 10 November 1926
• Docket Number: 5563.
• Citation: Tanner v. State, 163 Ga. 121, 135 S.E. 917 (Ga. 1926)
• Parties: TANNER v. STATE.
• Court: Georgia Supreme Court

135 S.E. 917

163 Ga. 121

TANNER v. STATE.

No. 5563.

Supreme Court of Georgia

November 10, 1926

Rehearing Denied Nov. 25, 1926.

Syllabus by Editorial Staff.

When indictment is duly returned as true bill, properly indorsed and with foreman's signature, presumption is that it was regularly found, and by concurrence of requisite number of grand jurors.

On plea in abatement, alleging indictment returned and indorsed as true bill was illegal and void because eleven jurors only voted for return thereof, burden was on defendant.

Point that indictment did not receive vote of twelve grand jurors could be made only by plea in abatement, and not after adverse ruling thereon, and during progress of trial, before traverse jury.

Where issue of bias and prejudice of jury against defendant was for determination of trial judge, his decision thereon will not be disturbed.

Alleged error in admitting evidence over defendant's objection held without merit, in view of judge's certificate that on motion of defendant's counsel he ruled evidence out.

In murder prosecution, admission of letters written by defendant jointly indicted held without error; admissibility thereof being controlled by former decision in the case.

If letters written by defendant jointly indicted were not binding on defendant, and were irrelevant, their admission was harmless.

In murder prosecution, evidence of witness that he got a note for payment of insurance, and note was in hands of an Alabama corporation, held admissible, over objection that there was better evidence of contents.

Secondary evidence of contents of writing is admissible when it is shown that writing is beyond jurisdiction.

Grounds of motion for new trial not referred to in defendant's brief are considered abandoned.

In murder prosecution, permitting witness to testify that, if defendant had been near a designated bush, and shot victim shot would have gone in back of victim's head held not error.

Generally, witness should be confined to statements of facts; his opinion being irrelevant and inadmissible.

It is peculiarly province of jury to draw deductions and form conclusions from facts shown by evidence.

Opinions are generally admitted from necessity of the case.

In view of Pen. Code 1910, § 1047, where question to be determined by jury is one of opinion, any witness may swear to opinion, giving reasons therefor.

Nonexpert may give opinion, based on facts sworn to by himself, as to cause of death; there being no question of skill or science involved.

One who is not an expert may, after describing wound, give opinion that it caused death, with reasons therefor, and that deceased could not have inflicted wound.

In murder prosecution, testimony of witness that only eleven grand jurors voted in favor of indictment held incompetent because issue of invalidity of indictment had been raised by special plea and overruled.

Grand jurors cannot be sworn to impeach their own finding.

Evidence of matter good in abatement to indictment cannot be introduced after arraignment and plea to merits and during trial, especially when plea in abatement setting up such matter has been overruled.

Under Civ. Code 1910, § 5881, previous statement of witness to be impeaching must refer to matters relevant to testimony and case, and must contradict matter testified to by him.

In murder prosecution, where anonymous letter written to sheriff was irrelevant to impeach witness, comment of court on its lack of probative value held, in view of Pen. Code. 1910, § 1058, not to require new trial.

Defendant having had opportunity to move for mistrial because of trial court's statement that letter had no probative value cannot, after return of adverse verdict, have it set aside.

In murder prosecution, where trial court excluded previously admitted evidence on objection of defendant, defendant cannot complain.

In murder prosecution, permitting witness to testify over defendant's objection, after state and defendant had closed, held discretionary.

In murder prosecution, charge that, if on evidence or defendant's statement jury believed defendant killed victim through accident or misfortune, or without evil design or culpable negligence, to acquit, held not error as imposing on defendant greater burden than law required.

In murder prosecution, charge that, if on evidence or defendant's statement jury believed defendant killed victim through accident or misfortune, or without evil design or culpable negligence, to acquit held not error as misleading jury into belief that, if defendant failed to put safety on gun, that alone would justify finding him guilty.

In murder prosecution, charge that, if on evidence or defendant's statement jury believed defendant killed victim through accident or misfortune, or without evil design or culpable negligence, to acquit, held not error, because, if death of victim was due to neglect, defendant could not be guilty of murder, but lower grade of homicide.

In murder prosecution, failure to charge law of involuntary manslaughter, held not error, in view of defendant's counsel's statement that only grades involved were murder or accidental homicide.

Error from Superior Court, Johnson County; R. Earl Camp, Judge.

J. J. Tanner was convicted of murder, and he brings error. Affirmed.

C. S. Claxton, of Wrightsville, A. W. Evans, of Miami, Fla., Geo. C. Evans, of Sandersville, Hightower & New, of Dublin, and Winfield P. Jones, of Atlanta, for plaintiff in error.

Fred Kea, Sol. Gen., and E. L. Stephens, both of Dublin, J. L. Kent and W. C. Brinson, both of Wrightsville, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

Syllabus OPINION.

HINES J.

J. J. Tanner and C. G. Rawlings were jointly indicted for the murder of Gus Tarbutton. Tanner was separately tried and convicted. His motion for a new trial was overruled. To that judgment he excepted. This is the second appearance of his case in this court. Tanner v. State, 161 Ga. 193, 130 S.E. 64.

Before arraignment and plea to the merits, the defendant filed a plea in abatement upon the ground that the indictment, which had been returned against him and indorsed as a "true bill," was illegal and void, because, while it purports upon its face to have been acted upon by 22 grand jurors, only 19 grand jurors were present when it was acted upon, and only 11 grand jurors voted in favor of returning a true bill. This plea was traversed by the state. The defendant, in support of his plea, introduced in evidence the minutes of the grand jury at the March term, 1925, of Johnson superior court, showing the proceedings of that body on the day said indictment purports to have been found true by said grand jury. The minutes of that day showed the statement of the case, the presence of 22 grand jurors, the names of the witnesses, and an entry of "true bill." The state introduced in evidence the bill of indictment with all entries thereon. This instrument contains the names of 22 grand jurors, and on it there is an indorsement of "true bill," signed by "R. R. Martin, Foreman." It was returned to the March term, 1925, of Johnson superior court. Thereupon the court passed an order overruling the plea in abatement. To this judgment the defendant excepted upon the ground that the minutes of the grand jury for the March term 1925, of Johnson superior court, showed that no such bill had been voted true and ordered returned into court, and that it appeared from the evidence that said indictment was absolutely void.

1. When an indictment is duly returned as a true bill, properly indorsed, and with the signature of the foreman, the presumption is that it was regularly found, and by the concurrence of the requisite number of grand jurors. Low's Case, 4 Greenl. (4 Me.) 439, 16 Am.Dec. 271; English v. State, 31 Fla. 356, 12 So. 689; Nash v. State, 73 Ark. 399, 84 S.W. 497; U.S. v. Wilson, 28 Fed. Cas. 725, No. 16737, 6 McLean, 604; Creek v. State, 24 Ind. 151; Hopkins v. State, 4 Okl. Cr. 194, 108 P. 420, 111 P. 947; Eubanks v. State, 5 Okl. Cr. 325, 114 P. 748; 31 C.J. 585, § 49. The burden was upon the defendant to sustain the allegations contained in his plea in abatement. The evidence introduced by him tended to sustain the above presumption, and not the facts alleged in his plea.

Movant contends that, after his plea in abatement was overruled, and during the trial of his case, it appeared by the testimony of a witness that, when the indictment was acted upon by the grand jury, the same received the vote of only 11 grand jurors, and failed to receive the vote of 12 grand jurors, and that it was the duty of the court, when this fact was made to appear, to immediately suspend the trial of the case, because, under the Constitution and laws of this state, said indictment was absolutely void, and further trial of his case was a nullity after this fact appeared, and the verdict finding him guilty and the sentence of the court imposed upon him were illegal and void. The point that the indictment did not receive the vote and sanction of twelve grand jurors could only be made by plea in abatement, and not after his plea in abatement raising this point had been decided against him and during the progress of the trial before the traverse jury. Turner v. State, 78 Ga. 174.

2. The defendant seeks a new trial upon the ground that one of the jury trying his case was biased and prejudiced against him was not perfectly impartial between him and the state; and had entertained a fixed opinion of his guilt before he was selected as such juror, which was unknown to movant and his counsel, in that said juror had made a statement to one Ben Akridge that he believed that the defendant, "J. J. Tanner, was guilty of...