Tatum v. State

• Decision Date: 16 November 1949
• Docket Number: 16789.
• Citation: 56 S.E.2d 518,206 Ga. 171
• Parties: TATUM v. STATE.
• Court: Georgia Supreme Court

56 S.E.2d 518

206 Ga. 171

TATUM v. STATE.

No. 16789.

Supreme Court of Georgia

November 16, 1949

Syllabus by the Court.

1. The court did not err in refusing the motion of counsel for the defendant to purge the jury as to relationship to persons whose names appeared on certain lists or petitions as having made contributions 'to the family of the deceased,' asserted in special ground 2 of the motion for new trial.

2. Where, at the inception of the trial, the court ruled that all jurors, related within the prohibited degree to any person whose name appeared on a list of voluntary prosecutors of the defendant on trial, were disqualified from serving as jurors, one who was so related and served vitiated the trial.

3. The court erred in overruling special grounds 5 and 7 of the motion for new trial. It was shown by affidavits offered in support of these grounds that the juror in support of these grounds that the juror hibited degree to two persons, each of whom had 'made a contribution to' the father of the deceased 'for the purpose of employing an attorney to assist in the prosecution' of the defendant and another 'who did appear and assist in the prosecution of said case.' This evidence was undisputed, no counter-showing having been made by the State.

4. It was not error to admit in evidence, over objection that they were irrelevant, immaterial, and prejudicial photographs or pictures of the body of the deceased, as complained of in ground 9.

5. Since a new trial is granted under the rulings in divisions 2 and 3, supra, no ruling is made on other grounds of the motion, which sought a new trial because of the alleged disqualification of jurors, and because of the refusal of a motion for a postponement of the case.

6. The verdict was fully supported by the evidence.

7. The court erred in overruling the motion for a new trial.

John S. Wood, Canton, D. Carl Tallant, Canton, Herman J. Spence Dahlonega, for plaintiff in error.

Jas. T. Manning, Sol. Gen., Marietta, Wm. A. Ingram, Cartersville, Eugene Cook, Atty. Gen., Rubye G. Jackson, Atlanta, for defendant in error.

ALMAND Justice.

At the April term, 1949, of the Superior Court of Pickens County, Bryan Tatum and Weldon Sullivan were jointly indicted for the murder of Grady Earl Holbert. They were jointly tried, and a verdict of guilty without a recommendation was returned on April 7, whereupon they were sentenced to be electrocuted. Tatum filed a motion for a new trial based on the usual general grounds, and by amendment nine special grounds were added. The motion as amended was overruled, and he excepted.

1. It appear from ground 2 of the amendment to the motion for new trial that, when the case was called, the solicitor-general produced four petitions, or lists of names, labeled respectively exhibits 1, 2, 3, and 4, containing altogether 116 names in writing, showing opposite each name the amount contributed by such person. There was typed on each of the lists numbered 2, 3, and 4, the following: 'We, the undersinged, hereby contribute the amount opposite our names to the family of Garland Holbert, who had the misfortune of having their son and brother, Earl Holbert, brutally murdered on the 22nd day of February, 1949.' The list or petition numbered 1 contained the names of six persons. In addition to the names, there also appeared on this list the words, 'A Friend,' five times; the words, 'A Friend to all,' one time; and the word 'Cash,' one time; there being written opposite each such designation an amount of money. On such list was typed: 'We, the undersigned, hereby contribute the amounts opposite our names, for the purpose of employing special counsel to assist the solicitor-general in prosecuting the defendants charged with the murder of Earl Holbert.'

Among the contributors and the amounts contributed, as shown by lists 2 and 3, were Hubert Godfrey, one dollar, and Dick Godfrey, fifty cents. In the view we take of the case, it is unnecessary to set out further the contents of these four lists.

Special ground 2 assigned as error the court's refusal to 'purge the jury as to the relationship of such jurors to certain persons whose names appeared on certain petitions labeled officially by the court reporter as numbers 2, 3, and 4, which said petitions or lists showed the names of certain contributors of money to the family of the deceased and the amount of the contributions made, and which said petitions were produced by State's counsel when movant's case was called for trial.'

It appears from this ground of the motion that the trial judge, in refusing to purge the jury in accordance with the above, stated: 'The motion is overruled. And the court holds that, under the evidence of Mr. Holbert [father of the deceased], these contributions in the exhibits 2, 3 and 4, were not contributors for the prosecution of defendants on trial. And the court holds further that those contributing on exhibit 1 are contributors to the prosecution, and that they or their relatives would be disqualified to serve on the jury.'

The brief of counsel for the plaintiff in error, after quoting the above, states: 'The court proceeded to purge the jury for relationship to the defendants, the deceased, to those persons whose names appeared on the list labeled 'Exhibit No. One,' which was the list of contributions for 'special counsel to prosecute murder cases.' The court inquired particularly as to relationship to' named persons, including all those whose names appeared on list No. 1.

The only evidence as to the contributions shown on lists 2, 3, and 4, was the testimony of Garland Holbert, father of the deceased. His testimony was direct and positive that the contributions on these three lists were made solely by friends of the deceased for aiding his family, and that the collections under these three lists were turned over to him and he placed the money in the bank, and that he did not use 'one dime of that money in connection with the prosecution.' There was no evidence before the trial judge that any person whose name appeared on lists 2, 3, or 4 had contributed money other than for the purpose which appeared at the head of the list, to wit, 'to the family of Garland Holbert.' The movant at the time the motion to purge was made did not submit any proof that any of the persons whose names appeared on lists 2, 3, and 4 had made contributions for the purpose of employing special counsel. The judge therefore did not err in overruling the motion to purge the jury as to relationship to the persons named on lists 2, 3, and 4.

2. Ground 3 charges that Elbert Clark, one of the jurors who served on the case, was a nephew of D. L. Holmes, who, as shown by list 1, had contributed the sum of $5 'for the purpose of employing special counsel to assist the solicitor-general' in prosecuting the defendant, and thereby the said Clark was disqualified to serve as a juror. This ground is properly supported by proof of lack of knowledge of such relationship at the time of the trial on the part of the defendant and his counsel.

When this case was called for trial, the State produced a petition entitled, 'Contributions for special counsel to prosecute murder cases,' which showed the names of the persons who had made contributions to the father of the deceased and the amounts contributed. Above these names appeared the following: 'We the undersigned hereby contribute the amount opposite our names for the purpose of employing special counsel to assist the solicitor-general in prosecuting the defendants charged with the murder of Earl Holbert.' On this list was the name of D. L. Holmes with a contribution of $5. Upon motion of counsel for the defendant, the trial judge made the following ruling: 'The court holds further that those contributing on exhibit one are contributors to the prosecution, and they or their relatives would be disqualified to serve on the jury.' The court thereupon endeavored to purge all tentative jurors who were related within the sixth degree to those persons whose names appeared on list number one. Apparently neither the juror Clark nor any one else disclosed that Clark was related within the prohibited degree to Holmes, nor was any issue raised before the trial judge at the time he purged the jury that Holmes had contributed to help the family of the deceased, and not to employ special counsel.

The trial judge made a positive ruling that all jurors who were related within the prohibited degree to any person whose name appeared on list number one were disqualified to serve on the jury trying the defendant. Under that ruling, Elbert Clark was disqualified propter affectum. The fact of disqualification being shown, the presumption arose that he was not a fair and impartial juror. Such presumption was not overcome or rebutted by the affidavit of D. L. Holmes, made after the trial, that he, Holmes, had made a contribution for the assistance of the family of the deceased and not to employ special counsel. The law presumes that both Clark and Holmes knew of the relationship. The fact of contribution and the purpose thereof were shown, and the court ruled as a matter of law that all jurors occupying the status of Clark were disqualified to serve. To permit a juror to serve under such circumstances, is a denial to the defendant of his constitutional right to be tried by a jury composed of twelve men each of whom is unbiased and impartial. As was said in Ga. Railroad v. Cole, 73 Ga. 713, 715: 'A jury composed of men who are not lawful men--whose relationship to the parties renders them incompetent as jurors, cannot render a lawful verdict. * * * It cannot be said that the defendants in error have had their case tried; certainly not legally and, although the verdict may be in...