Wallace v. State

• Decision Date: 13 September 1949
• Docket Number: 16742.
• Citation: 55 S.E.2d 145,205 Ga. 751
• Parties: WALLACE v. STATE.
• Court: Georgia Supreme Court

55 S.E.2d 145

205 Ga. 751

WALLACE v. STATE.

No. 16742.

Supreme Court of Georgia

September 13, 1949

G. A. Huddleston, Greenville, E. Kiser Whatley, Jr. Greenville, Harris, Henson & Spence, Atlanta, for plaintiff in error.

Wright Lipford, Sol. Gen., Newnan, Myer Goldberg, Newnan, Eugene Cook, Atty. Gen., Rubye Jackson, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

HAWKINS Justice.

John Wallace was jointly indicted with Herring Sivell, Henry Mobley, and Tom Strickland, for he murder of Wilson Turner and upon his separate trial Wallace was found guilty. He moved for a new trial, and on appeal to this court the judgment overruling his motion for a new trial was affirmed. Wallace v. State, 204 Ga. 676, 51 S.E.2d 395. Thereafter he presented an extraordinary motion for a new trial based upon three grounds: (1) That one of the jurors who served as a member of the jury which convicted the movant was disqualified to sit in the case, or to serve as a juror and trior of the issues in the case, for the reason that he had, prior to the date on which he was selected, made an open and public declaration 'that if he was selected to serve on the jury that tried Wallace, he, regardless of the evidence, would give Wallace the electric chair;' that therefore the juror's mind was not impartial as between the State and the accused, and he was wholly disqualified to serve as a juror in the case. This ground is supported by the joint affidavit of three named persons to the effect that they heard the juror make such a statement, and by the necessary supporting affidavits. The second and third grounds of the extraordinary motion for a new trial are based upon the affidavits of two other persons jointly indicted with the defendant, Herring Sivell and Henry Mobley, to the effect that after leaving Coweta County, where the State contends the mortal wound was inflicted upon the deceased, he was without any wounds, was active and rational, talking with these witnesses and the defendant, and smoking cigarettes in Meriwether County. It is the contention of the movant that this is newly available evidence in his behalf to substantiate his contention that the deceased came to his death in Meriwether County and not in Coweta County as alleged in the indictment; that this evidence became available to him for the first time after the disposition of his original motion for a new trial, because these two named witnesses on the trial and while seated on the witness stand claimed their constitutional privilege of declining to testify or answer any questions in the case on the ground that if they did so their testimony might tend to incriminate them, they being jointly indicted with the defendant, but in their affidavits they indicate a willingness to now testify should the movant be granted a new trial, since they have now been sentenced to life imprisonment. The affidavits of these two witnesses disclose that there was another person, one Tom Strickland, along with them at the time and on the occasion referred to by them in their affidavits. The record of the former trial discloses that the defendant knew that Tom Strickland could have given testimony to the same effect as that contained in the affidavits of the two alleged newly available witnesses, for, in his statement on the...