Taylor v. State

• Decision Date: 26 February 1909
• Citation: 63 S.E. 1116,132 Ga. 235
• Court: Georgia Supreme Court
• Parties: TAYLOR . v. STATE.

63 S.E. 1116

132 Ga. 235

TAYLOR .

v.STATE.

Supreme Court of Georgia.

Feb. 26, 1909.

1. Criminal Law (§ 786^*) — Instructions — Prisoner's Statement.

After the judge had given in charge to the jury the provisions of law as contained in the Penal Code, touching the right of an accused person to make a statement not under oath, that it should have such force only as the jury might think right to give it, and that they might believe it in preference to the sworn testimony in the case, there was no error requiring a reversal in adding: "If you believe it, then you may accept the unsworn statement of the defendant in preference to the sworn testimony, not capriciously or arbitrarily, but in search of the truth. There is no presumption attached to the defendant's statement, no presumption that it is true, nor any presumption that it is not true. It goes to you without a presumption either for or against it."

(a) The better practice in charging on the subject of the prisoner's statement is to instruct the jury in the language of Pen. Code 1895, § 1010, without adding thereto comments or explanations.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1896; Dec. Dig. § 786.*]

2. Criminal Law (§§ 656, 665*)—Trial — Exclusion op Witnesses—Violation of Rule—Effect—Remarks of Court.

Where, on the trial of a criminal case, the rule for the sequestration of witnesses has been invoked, the fact that one of the witnesses for the state, after testifying, has remained in the courtroom and heard a portion of other witnesses and the statement of the accused, does not render him incompetent as a matter of law when offered to testify in rebuttal; and the refusal of the judge to exclude him from testifying will not require a new trial.

(a) Upon objection being made to the introduction of the witness in rebuttal, there was no error on the part of the judge in saying: "It does not disqualify the witness. _ It goes to his credit. I will let you examine him. When the rule is invoked, it must be enforced."

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1526, 1558; Dec. Dig. §§ 656, 665.*]

3. Criminal Law (§§ 040, 958^*)—New Trial —Newly Discovered Evidence—Affidavit of Diligence—Sufficiency—Showing as to Credibility—Hearsay Evidence.

One ground of the motion for new trial was based on newly discovered evidence; but the evidence so discovered was mere hearsay, and there was no sufficient showing as to diligence in ascertaining the facts referred to in it, nor of the good character of the newly discovered witness. It was therefore not error to refuse a new trial on such ground.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2390, 2400; Dec. Dig. §§ 940, 958.*]

4. Sufficiency of Evidence.

The verdict was supported by evidence.

(Syllabus by the Court.)

Error from Superior Court, Coweta County; R. W. Freeman, Judge.

Sam Taylor was convicted of murder, and he brings error. Affirmed.

W. H. Daniel, J. L. Jones, J. B. Copeland, and Robt. Orr, for plaintiff in error.

J. R. Terrill, Sol. Gen., W. C. Wright, and John C. Hart, Atty. Gen., for the State.

ATKINSON, J. Sam Taylor was indicted for the murder of Warren Price. He was convicted, moved for a new trial, and, after its refusal, excepted.

1. One ground of the motion for new trial assigned error on the following charge: "In all criminal trials the law says the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense. It shall not be under oath, and shall have such force only as the jury may think right to give it. They may believe the statement of the defendant in preference to the sworn testimony in the case. If you believe it, then you may accept the unsworn statement of the defendant in preference to the sworn testimony, not capriciously or arbitrarily, but in search of the truth. There is no presumption attached to the defendant's statement, no presumption that it is true, nor any presumption that it is not true. It goes to you without a presumption either for or against it." Under the rulings in Cornwall v. State, 91 Ga. 277 (5), 18 S. E. 154, and Keller v. State, 102 Ga. 506 (9), 514, 31 S. E. 92, it cannot be said that this charge as an abstract statement of law was erroneous, or was such as to require the grant of a new trial. But we cannot refrain from repeating what this court has said again and again, that it is best for the trial judge to charge the jury the law as laid down in Pen. Code 1895, § 1010, in regard to the right of the prisoner to make a statement, and the effect which they may give to it, and not to add criticisms or comments which may be misunderstood by the jury and have an injurious effect upon the manner in which they deal with such statement. While there is no presumption of law in favor of a prisoner's statement or against it, and while the jury ought not to do anything arbitrarily or capriciously in the trial of a case, yet instructions of this kind made in connection with the statement of the prisoner,...