Vernon v. State
| Decision Date | 12 April 1917 |
| Docket Number | 366. |
| Citation | 92 S.E. 76,146 Ga. 709 |
| Parties | VERNON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A solicitor general is not disqualified to prosecute in his official capacity because he has employed associate counsel to assist him in conducting the prosecution, and himself pays the fee of such counsel.
It was error, requiring a new trial, not to submit to the jury the law of voluntary manslaughter.
It was not error to refuse a written request to instruct the jury as follows:
It was not error to admit evidence of the deceased's good character, nor to reject evidence of specific acts to show his bad character.
All other assignments of error are without merit.
Error from Superior Court, Cobb County; H. L. Patterson, Judge.
James R. Vernon was convicted of murder, and brings error. Reversed.
In prosecution for homicide, failure to submit charge on voluntary manslaughter held erroneous under the evidence.
James R. Vernon was indicted for the murder of L. L. Vernon. Upon the trial of the case, and before the full jury was selected and sworn, the defendant filed a motion to declare a mistrial, and asked the court to rule that the solicitor general was disqualified to participate in the case, on the ground that he had employed counsel to assist him in the prosecution, and was individually responsible for the payment of his fee. The court overruled the motion, and the defendant excepted pendente lite. The case proceeded to trial, and the defendant was found guilty of murder, with a recommendation to mercy. He made a motion for a new trial, which was overruled, and he excepted. Error was assigned on each of the rulings just stated.
The material evidence, as developed upon the trial, was in substance as follows: James R. Vernon, the defendant, shot and killed his father, L. L. Vernon, with a pistol. The deceased was between 66 and 68 years of age, an old man, and not in good health. The daughter of the deceased, who was about 38 years of age, testified, among other things, in substance as follows: On the day of the killing she and her mother and father were in the home, the other inmates being out of the house. The daughter was in the dining room alone when her father came in and said: "Let's go to another room to the bed." She said: The mother ran in, and the father cursed her and told her not to try to attend to his business. The defendant and another man were at work some distance away in the field. The father called to them and cursed them, and told them to go to work saying that it was none of their business. The father continued to curse the mother, and said, "I have a great mind to kill you." The daughter began to scream, and the defendant came to the house as quick as he could, and wanted to know what was the matter. The mother told him what had occurred. The father continued to curse the mother, and the defendant begged him not to do that way. The father offered to hit the mother and his daughter. The defendant caught him by the arm and told him not to do that, and held him, and told him if he would behave himself he would let him loose, and the father at last promised to do so. The defendant then let his father loose, and they both started out of the door, when the father began to curse the defendant, and told him to leave and not come back any more, and said, "I will kill you if you do." The defendant was going sideways out of the door, and the deceased was following him. The father continued to curse the defendant, and said: The defendant said: --three or four times. The sister had started out of the dining room door, and got out just in time to see them. She said: "My father run his hand in his pocket, and said: 'God damn you; I will kill you now;' and as he did that my brother shot him." A knife was found closed in the pocket of the dead man by the sheriff. The evidence of the mother agreed in the main with that of the daughter. She also stated that on Monday prior to the killing on Tuesday, the defendant was at her home, and she told him how the father had talked to his daughter, Mary, whereupon the father cursed the mother. The defendant reproved his father, and told him to be ashamed of it; and the father told the defendant to go on back home, and shut his mouth, and if he didn't he would kill him, if he came back there any more meddling with his business. One witness testified that about a year prior to the homicide she had heard the defendant make threats to kill his father, if he "said anything to him." There was impeaching evidence tending to show that the daughter was not of good character, and evidence of contradictory statements made by her.
Fred Morris, N. A. Morris, and Geo. D. Anderson, all of Marietta, for plaintiff in error.
Herbert Clay, Sol. Gen., and J. Z. Foster, both of Marietta, Clifford Walker, Atty. Gen., and M. C. Bennet, Asst. Atty. Gen., for the State.
GILBERT, J. (after stating the facts as above).
1. During the trial of this case, and before a full jury was selected and sworn, counsel for the accused filed a motion to declare a mistrial, and asked the court to rule that the solicitor general was disqualified, and for the appointment of a solicitor general pro tem. to conduct the case, upon the ground that the solicitor general had employed Mr. J. Z. Foster to assist in the prosecution of the case, and that the solicitor general was solely and individually responsible for the payment of the fees of his associate counsel for his services in the prosecution. The court overruled the motion, and refused to declare a mistrial. We think there was no error in so ruling. We do not overlook the expression that the solicitor general was "solely and individually responsible for the payment" of the fee of employed counsel. Considering that the interest of the solicitor general was official only, and the duties to be performed by the employed counsel, the inference is that the employment was by the solicitor in his official capacity for assistance to him in his official capacity, and that the payment for the services was to be made in the official capacity of the solicitor. To hold that this effected a disqualification would be unreasonable. If the employment of counsel to assist in the prosecution is a disqualification, why not the employment of a stenographer to assist the solicitor general in a clerical capacity; and why not the incurring of any other incidental expense to enable him to better perform his official duties? The illustration might be carried on ad infinitum, and the inevitable result of such construction would be to tie the hands of the prosecuting officers who are important factors in the efforts to suppress and punish crime. When these officers are overburdened with work, and are willing to compensate others to secure assistance in their manifold and arduous duties, their efforts are to be commended, rather than held to work a disqualification. The facts in the cases of Baker v. State, 97 Ga. 454, 25 S.E. 341, Hicks v. Brantley, 102 Ga. 264, 29 S.E. 459, and Nichols v. State, 17 Ga.App. 593, 87 S.E. 817, bear no relation whatever to the facts in the present case.
2. According to the rulings in Rumsey v. State, 126 Ga 419, 423, 55 S.E. 167, Mize v. State, 135 Ga. 291, 296, 69 S.E. 173, and Peterson v. State, 146 Ga. 6, ...
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