Wheeler v. State
| Decision Date | 07 January 1965 |
| Docket Number | No. 22707,22707 |
| Citation | 220 Ga. 535,140 S.E.2d 258 |
| Parties | John Wesley WHEELER v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Since the evidence amply supports the verdict, the general grounds of the motion for new trial were properly denied.
2. (a) The argument complained of was not improper, and therefore the denials of the motions for mistrial were not erroneous.
(b) The trial judge's appending of a note with reference to such argument to one of the grounds of the motion for new trial was not error.
(c) The trial judge's striking of a spectator's affidavit from one of such grounds was not error.
3. (a) The question asked a witness by the trial judge did not express an opinion as to what had been proved.
(b) The trial judge's addition of a note with reference to such question to one of the grounds of the motion for new trial was not error.
4. Failure to charge the jury upon involuntary manslaughter was not erroneous.
5. There was no expression of opinion injurious to the defendant in the trial judge's remarks to the jury as to their not having reached a verdict.
6. The re-charge as to recommendation of mercy was proper.
7. Failure to charge upon credibility of witnesses was not erroneous.
8. The question asked and testimony offered were material, and hence erroneous rulings as to them require the grant of a new trial.
9. It is not necessary to pass upon the assignment of error as to the sentencing of the defendant.
Wendell J. Helton, Robert T. Efurd, Robert T. Efurd, Jr., Atlanta, for plaintiff in error.
William T. Boyd, Sol. Gen., J. Walter LeCraw, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.
Convicted of murder, John Wesley Wheeler assigns error upon the denial of his motion for new trial, the addition to such motion of two notes by the trial judge, the striking of an affidavit from such motion by the trial judge, and the legality of his sentencing. He was indicted by the grand jury of Fulton County for the murder of Jesse Sagoes and upon trial in the superior court of that county was found guilty without a recommendation.
1. The three general grounds of his amended motion for new trial are without merit. There was testimony from which the jury was fully authorized to find that the defendant killed the deceased as charged in the indictment. Such testimony was that in the early morning the defendant entered the room where the deceased was in bed, and without any provocation struck him several blows on the head with a heavy instrument, producing his death. Having been approved by the trial judge, the verdict will not be disturbed by this court.
2. Grounds 4 and 11 complain of the failure to declare a mistrial because of alleged prejudicial remarks by the assistant solicitor general during his argument to the jury, which remarks were not cured by the court in any manner.
In ground 4 the defendant contends that the language was 'We cannot let this man go back to animal kingdom.' However, the trial judge added to this ground a note reciting that the language was 'These people are living in animal kingdom.'
In ground 11 the defendant avers that the assistant solicitor general's reference in his argument to the defendant and 'animal kingdom' violated his right to a fair trial under both the Federal and State Constitutions. He further urges that the reference to him living in 'animal kingdom' tended to make the jury believe that the Negro race was an inferior or evil race, that this language was improper since his character had not been put in issue, and that such argument tended to degrade him.
In connection with these grounds of his amended motion for new trial the defendant submitted an affidavit by a spectator in which the affiant stated that he was present during the trial and purported to recount the language used by the assistant solicitor general, with his own conclusions from it. This affidavit was ordered stricken by the trial judge.
The argument which calls for mistrial is that which introduces facts not in evidence and is calculated to prejudice the defendant, not flights of oratory, figurative speech or false logic. Powell v. State, 179 Ga. 401(4), 411-412, 176 S.E. 29. See also Patterson v. State, 124 Ga. 408(1), 52 S.E. 534; Radcliff v. State, 220 Ga. 169(2), 137 S.E.2d 654.
The argument here was a reasonable and permissible deduction from the testimony, which described a group of people who lived together in one house and whose conduct was grossly immoral. No mention appears in the argument or evidence as to any of these people being members of the Negro race. The language used was not improper.
In so doing the trial judge was properly seeking to cause the factual recitals of the motion to speak what he regarded to be the truth. The law places that responsibility upon him.
[c] There is no merit in the assignment of error in the bill of exceptions as to the trial judge having ordered the affidavit of the spectator stricken from these grounds. As stated in Division 2(b), above, it is the responsibility of the trial judge to make the motion speak the truth as to the facts. He could therefore properly order stricken a recital which he considered to be inaccurate.
3. In ground 5 the defendant insists that the trial judge expressed an opinion while questioning a witness for the State. The judge asked 'Do I understand that he cut him at the time he hit with an axe?' The defendant urges that this implied to the jury that he hit the deceased with an axe, whereas the same witness has previously testified, 'I can't say for sure it was an axe,' and 'I couldn't tell exactly what it was.' To this ground the trial judge appended a note which in material part stated that when he asked the question he 'had not clearly heard what the witness had said, on account of the witness' voice not being quite loud enough,' and 'was merely seeking to get from the witness a clarification of what she had said about previous cutting having taken place * * *.'
[a] The judge's question was not an expression of opinion as to what had been proved, in violation of Code § 81-1104, but was an effort to ascertain what the witness had just said. The transcript of the testimony and the form of the question--'Do I understand that * * *'--show this. The judge has the right to question witnesses for the purpose of developing the truth of the case, so long as he does not do it in such a manner as to intimate an opinion upon what has or has not been proved or upon the guilt of the accused. See Johnson v. State, 169 Ga. ), 821, 152 S.E. 76. No intimation of such opinion is contained in the question complained of here.
(b) The assignment of error in the bill of exceptions as to the trial judge's addition of the note to this ground 5 of the motion for new trial is not meritorious. The note added nothing since, as stated in Division 3(a), above, it is apparent from the transcript of the testimony itself that the question was asked in an effort to ascertain what the witness had said and intimated no opinion.
4. By ground 6 the defendant asserts that the trial court erred in failing to charge the jury upon involuntary manslaughter in that there was no evidence to identify the instrument allegedly used as one likely to produce death. This assertion is not sustainable.
There was testimony that an axe was kept in the portion of the house where the crime was committed. An eyewitness identified the weapon used as an axe or a crowbar. The examining physician testified that death was due to fractures of the skull from a heavy, sharp instrument.
Furthermore, under no version of what occurred was involuntary manslaughter involved. Failure to charge upon it was not error.
5. The defendant in ground 7 claims error in that when the jury requested a re-charge the trial judge expressed an opinion injurious to him by the following remarks: In no sense was this language an expression of opinion prejudicing the defendant's rights under Code § 81-1104, supra, and therefore this ground is not valid.
6. Ground 8 complains that the trial court erred in its re-charge pertaining to the jury's right to recommend mercy and urges that the recharge did not cover the subject matter of the request.
What occurred was as follows.
The foreman stated, 'Our problem is as to a recommendation of mercy * * * We are interested in the part about the recommendation of mercy in your charge.'
The court then re-charged in the identical language previously given: ...
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