Taylor v. State

• Decision Date: 17 April 1916
• Docket Number: 6818.
• Parties: TAYLOR v. STATE.
• Court: Georgia Court of Appeals

88 S.E. 696

17 Ga.App. 787

TAYLOR v. STATE.

No. 6818.

Court of Appeals of Georgia

April 17, 1916

Syllabus by the Court.

"No person shall be compelled to give testimony tending in any manner to criminate himself." Article 1, § 1, par. 6, of the Constitution (Civ. Code 1910, § 6362). "No party shall be required to testify as to any matter which may criminate or tend to criminate himself, or which shall tend to work a forfeiture of his estate, or which shall tend to bring infamy or disgrace or public contempt upon himself or any member of his family." Civ. Code, § 4554.

(a) "The mode of impeaching a witness by proof of character or reputation is laid down in the Code (Pen. Code 1910, § 1053; Civ. Code 1910, § 5882). The Code specifies the questions to be propounded, and 'impliedly excludes all others.' Barnwell v. Hannegan, 105 Ga. 400, 31 S.E. 116. See, also, Gordon v. Gilmore, 141 Ga. 348 (7), 349, 350, 80 S.E. 1007. It provides for impeachment by proof that the 'general character' of a witness is bad, and that from that character the impeaching witness would not believe him on oath; it does not provide for impeachment by proof as to a special kind of character, such as character for chastity, or even veracity." Rudulph v. State, 16 Ga.App. 354, 85 S.E. 365. See in this connection, McDuffie v. State, 121 Ga. 580 49 S.E. 708 (7 and 8); Taylor v. State, 83 Ga. 647 (4), 657, 10 S.E. 442; Allred v. State, 126 Ga. 537 55 S.E. 178 (3); Doggett v. Simms, 79 Ga. 253, 4 S.E. 909; Huff v. State, 104 Ga. 521 (4), 524, 30 S.E. 808; Johnson v. State, 48 Ga. 116 (3); Georgia R. R. Banking Co. v. Lybrend, 99 Ga. 421, 27 S.E. 794 (5); Wheeler v. State, 112 Ga. 43, 37 S.E 126 (3).

There was no error in the refusal of the court to grant a mistrial because of a reference by the solicitor general to matters outside of the record, in view of the explanatory note touching this ground of the motion, and of the further fact that the judge instructed the jury to disregard entirely such extraneous matter. The harmful effect, if any, was removed by the instruction given by the court.

There is no merit in the several exceptions to the charge of the court as to the good character of the defendant. The charge was in exact accord with the ruling in Taylor v. State, 13 Ga.App. 715, 79 S.E. 924, which controls this case.

A specific intent to kill will not be presumed where death does not ensue, and the existence of such intent is a question of fact to be passed upon by the jury. The law imputes the intention to kill where there is in fact a killing, but not where there is no killing. In a trial for assault with intent to murder the question of whether or not there was an intention to kill should be submitted to the jury by the court.

The charge of the court sufficiently covered the law as to the right of the defendant to resist an alleged illegal arrest, and there was no error in declining to give the requested instruction on that subject.

There is no substantial merit in any of the exceptions to the charge of the court, or to the failure to give any of the various instructions requested, not specifically mentioned in the foregoing headnotes, since the charge given correctly and sufficiently covered all the issues involved. Nor was there reversible error in the exclusion or admission of any testimony not referred to above.

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

W. H. Taylor was convicted of assault with intent to murder, and brings error. Affirmed.

John R. Cooper, of Macon, for plaintiff in error.

John P. Ross, Sol. Gen., of Macon, for the State.

WADE J.

When this case was formerly before this court (Taylor v. State, 13 Ga.App. 715, 79 S.E. 924), the court said, as to the testimony then under review, that "a verdict finding [the defendant] guilty of assault with intent to murder would have been fully authorized by this testimony," and it is apparent from the record that the testimony in the subsequent trial fully authorized the verdict now under review, since the case made out for the state at the former trial was materially strengthened at the last trial by the testimony of witnesses not heard on the former trial.

1. The ruling stated in the first headnote needs no amplification.

2. It appears from the motion for a new trial that counsel for the defendant moved the court to declare a mistrial because of the following statement by the solicitor general in his concluding argument to the jury:

"Gentlemen of the jury, Mr. Cooper is now taking a case from Washington county, Ga., charged with the killing of a white man, to the Supreme Court of the United States, upon the ground that there was no negroes on the jury."

The note by the court as to this ground of the motion is as follows:

"What transpired as to the motion for mistrial, referred to in this ground, is substantially as follows: Mr. Cooper, defendant's counsel, during his argument to the jury had made an attack upon the testimony of the state's witness, Bertha Thomas, upon the ground that she was a negro, arguing that a negro's testimony should be discredited by the jury in a case of the kind on trial, and had used sharp personalities in reference to the solicitor general and his reliance on negro testimony. The solicitor general, in his concluding argument, referring to Mr. Cooper's argument as to the character of the negro's testimony, referred to the action of Mr. Cooper in taking a case, where a negro had been convicted of murder, from the state court to the United States Supreme Court, on the ground that there were no negroes on the jury trying the case. Mr. Cooper thereupon made the motion for a mistrial referred to, and the court refused to declare a mistrial, the motion and the action of the court in overruling the motion being in the following language: Mr. Cooper: 'I move for a mistrial, because the solicitor told the jury that on account of my love for the negro, I am taking to the Supreme Court of the United States a case, on account of my love for the negro; and the argument is entirely improper and unfounded, because that is not the reason I am taking the case to the Supreme Court of the United States, but because I don't believe the negro ought to have been hung.' The Court: 'I will not grant a mistrial, but I think the statement of the solicitor general is out of order and not a part of this case, and the jury will not consider that statement as to any case being carried to the United States Court. You will try this case, gentlemen of the jury, according to the sworn evidence in this case, and not on the statements of counsel.' "

Considering the precise utterance of the solicitor general in connection with the note relating to the ground of the motion based upon the court's refusal to declare a mistrial on account of such remark, it is apparent that there was not, in the actual words employed by counsel for the state, any such reflection upon counsel for the accused as would necessarily tend to disparage counsel, or to improperly destroy the influence or effect of his preceding argument to the jury. Counsel for the accused appears to have based his motion for a mistrial on his own assertion that counsel for the state had told the jury that on account of his "love" for the negro race he was taking to the Supreme Court of the United States a certain case for review, but the actual words of the solicitor general do not bear out the interpretation placed thereon by counsel for the accused. The judge's note makes the matter perfectly clear. The state had introduced a negro witness against the accused, and counsel for the defendant had sharply criticized the solicitor for seeking to convict the defendant, a white man, upon the evidence of a negro; whereupon counsel for the state retorted in his concluding argument by using the words complained of. The effect of these words was not necessarily to disparage counsel for the defendant, to reflect upon him in any way, or to destroy the legitimate value of any proper argument previously addressed by him to the jury, but merely applied to him the argumentum ad hominem, by calling the attention of the jury to conduct on his part which was seemingly at a variance with the position then assumed by him in regard to the value of negro testimony, and apparently sought to indicate that his position in the case on trial was inconsistent with his position at other times and places. The statement made by the solicitor general was undoubtedly improper, since it injected into the case matter entirely extraneous to the record. The fact that counsel for the defendant had likewise previously departed from the record and attempted to depreciate the value of the testimony delivered by a certain witness, solely because that witness was a negro, did not amount to a legal excuse or justification for the natural retort made by the solicitor general, since two wrongs do not make a right; but the departure from the record actually indulged in by the solicitor general presented to the jury no conclusion unauthorized by the evidence, touching the guilt or innocence of the accused, injected no unwarranted view or statement calculated to prejudice the jury, and cast no odium upon him or his counsel.

It is true that in criminal trials great injustice may be done those accused of crime by remarks of counsel not authorized by the evidence; but, on the other hand, it cannot be assumed that every irrelevant statement falling from the lips of counsel for the state, or that every hasty reply to opposing counsel, or every introduction of matter outside of the evidence, will require the grant of a mistrial. If this were true, very many arguments for the state would be emasculated and the state's officer be often compelled to...