Whitworth v. State
| Decision Date | 10 April 1923 |
| Docket Number | 3519. |
| Parties | WHITWORTH v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where on the trial of one for murder, it appeared that counsel had been employed and paid by funds raised by popular subscription, and that such counsel did in fact aid in the prosecution of the case, the trial judge did not err in refusing a request of counsel for the defendant all jurors related to subscribers to said fund be stricken before the array was put upon the defendant, and the jurors called and put upon the defendant; the court having the names of such subscribers called in the presence of the jurors, instructing them that, if any of them were related to such subscribers they should let that fact be known when their names were called, and in this way having all jurors disqualified for any cause stricken from the panel. The method of excluding from the panel jurors disqualified for cause is to have each juror called and put upon the defendant, so that each juror can be plainly seen by him, and an opportunity be thus given him to make objection that any juror is disqualified by law from serving on the jury, for any reason, including relationship to a voluntary prosecutor, such as a subscriber to a fund to employ counsel to prosecute the defendant; the method of purging incompetent and disqualified jurors from the panel in civil and misdemeanor cases not being applicable to felony trials.
The court did not err in admitting evidence of a confession made by the defendant under these cricumstances: The defendant was in jail. The sheriff said to him, "You killed your wife I am certain," and told him that nobody could touch him while he was in the custody of this officer, and that, if the defendant did not want to make a statement, not to do it. The defendant did not then make a statement; but as the sheriff started out, the defendant called him back and said that, if the sheriff would take him out of the cage to himself, he would like to talk to him. They went around into a cell by themselves, and the defendant said to the sheriff that he wanted to tell the truth about it, and said, "Yes; I killed my wife last night and cut her throat." The sheriff asked him, "What for?" and the defendant said, "She wouldn't let me have the money she had, and wouldn't let me have intercourse with her." Under these circumstances, evidence of this confession was not inadmissible on the ground that it was not voluntary but was induced by hope of benefit or fear of injury.
The court did not err, for the reasons assigned by the defendant, in charging the jury as follows: "But I charge you in the beginning, that the law presumes everybody to be sane; that is a presumption, however, that is rebuttable, and it is not everybody that is sane, and the burden is on the defendant to establish that fact; whether or not that has been done either by evidence from the state, or established by evidence from the defendant, it can be done by evidence of either, is a question entirely for you to determine; you are the sole judges."
In the absence of timely requests, the court did not err in failing to give in charge to the jury instructions as to matters collateral to the defenses set up by the defendant.
The court did not err in refusing to grant a new trial upon the grounds of the motion setting up newly discovered evidence; it not being made to appear that the same could not have been discovered by the exercise of ordinary care, and it not being probable that the result would have been different if the alleged newly discovered evidence had been before the jury.
The verdict is supported by the evidence; and the trial judge did not abuse his discretion in refusing to grant the defendant a new trial.
Additional Syllabus by Editorial Staff.
Objections to individual jurors, such as objection that juror is related within prohibited degree to volunteer prosecutor, is not ground for challenge to array, but only of challenge to the polls.
One contributing to fund for employment of attorney to aid in prosecution for an alleged offense, which attorney does render aid on the trial, is a "volunteer prosecutor," and one related to him within the prohibited degree is incompetent as a juror.
The hope of benefit which will exclude a confession under Pen. Code, § 1032, must be one which another holds out to accused to elicit it, and the fear of injury must be a fear which another excites to make defendant confess.
Error from Superior Court, Hall County; J. B. Jones, Judge.
Arthur Whitworth was convicted of murder, and he brings error. Affirmed.
Johnson & Adderholdt, of Gainesville, for plaintiff in error.
Robt. McMillan, Sol. Gen., of Clarkesville, Jos. G. Collins, Sol. Gen., and Howard Thompson, both of Gainesville, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.
The defendant was indicted for the murder of his wife, and was convicted and sentenced to be hanged. His defenses consisted of the general defense of not guilty and the defense of insanity. He made a motion for new trial upon the general grounds, and upon certain special grounds embraced in an amendment to his motion. He assigns error upon the judgment of the court overruling his motion for new trial.
1. An attorney was employed to assist in the prosecution of the defendant, and was paid by a subscription made for that purpose by various persons. Counsel for the defendant requested the court to purge the jury of all those on the list of jurors who were subscribers to said fund or related to such subscribers. The court then had the list of subscribers to said fund read, and stated to the jurors that if any of them were related to the defendant, to the deceased, or to any of the subscribers to said fund, they would let that fact be known when their names were called, one by one. Of the panel of 48 jurors put upon the defendant, 26 were stricken for cause when so called. The defendant insists that the court should have purged the panel of 48 of all disqualified jurors, and should have had their places filled by impartial and competent jurors before the array was put upon him, so that he could have had a panel of 48 qualified and competent jurors from which to strike. The failure of the court to pursue this method left 26 disqualified jurors upon the panel, whose disqualification was not known to him, and could not be known until the name of each juror was called, for which reason he and his counsel left on the jury those whom they would have stricken, had it been known to them at the time that other men further down on the list were disqualified and would go off for cause. So the first question for determination is whether or not this action of the court was error. To answer this question, we must determine what is the proper and legal practice in this matter.
When any person stands indicted for a felony, the jury should be impaneled as prescribed in sections 862 and 863 of the Penal Code. Penal Code, § 996. By section 862:
When panels of jurors are made out in accordance with the provisions of the above sections, the clerk is required to make out three lists of each panel and furnish one to prosecuting counsel and one to counsel for the defendant. The clerk shall then call over the panel, and it shall be immediately put upon the accused. Penal Code, § 997. The accused can then in writing challenge the array for any cause going to show that it was not fairly or properly impaneled or ought not to be put upon him. If the challenge is sustained a new panel shall be ordered; but, if not sustained, the selection of jurors shall proceed. Penal Code, § 998. Objections to individual jurors of the panel furnish no ground of challenge to the array, but only ground of challenge to the polls. Robinson v. State, 82 Ga. 535, 9 S.E. 528; Schnell v. State, 92 Ga. 459, 17 S.E. 966; Brown v. State, 97 Ga. 215, 22 S.E. 403; Bryan v. State, 124 Ga. 79, 52 S.E. 298; Coleman v. State, 141 Ga. 731 (1b), 82 S.E. 228. In the absence of a challenge to the array, each juror is then called by the clerk, and in calling each juror he shall be presented to the accused in such a manner that he can distinctly see him, and then the state or the accused may make either of the following objections: (1) That he is not a citizen, resident in the county; (2) that he is an idiot or lunatic or intoxicated; (3) that he is so near of kindred to the prosecutor, or the accused, or the deceased, as to disqualify him by law from serving on the jury. Penal Code, § 999. One who contributes to a fund to be used in the employment of an attorney to aid the solicitor general in the prosecution of a person for an alleged offense for which he stands charged, where the attorney does render such aid upon...
To continue reading
Request your trial
-
Spencer v. Kemp
...shall proceed. O.C.G.A. Sec. 15-12-162 (formerly Ga.Code Sec. 59-803). This has long been the law in Georgia. See Whitworth v. State, 155 Ga. 395, 117 S.E. 450 (1923); Felker v. Johnson, 53 Ga.App. 390, 186 S.E. 144 (1936). More recently, the Georgia Supreme Court held that a claim by a sta......
-
Gossett v. State
... ... itself, if it exists, and not the refusal to purge the entire ... panel at the beginning, of which complaint may be made. See, ... in this connection, Carter v. State, 106 Ga. 372(6), ... 32 S.E. 345, 71 Am.St.Rep. 262; Whitworth v. State, ... 155 Ga. 395(1), 117 S.E. 450; Atlanta Coach Co. v ... Cobb, 178 Ga. 544, 555, 174 S.E. 131; Dees v ... State, 41 Ga.App. 321(1), ... [48 S.E.2d 84] Atlanta Coach Co. v. Cobb, supra [178 Ga. 544, ... 174 S.E. 137] ... (a) It ... follows that the court ... ...
-
Williams v. State
...different from the opposing situation, where the state initiates the proposal and uses it to beguile the suspect. In Whitworth v. State, 155 Ga. 395, 117 S.E. 450 (1923), the Supreme Court of Georgia said that the hope of reward which will exclude a confession must be one which another hold......
-
Britten v. State
...99 S.E.2d 113; Blount v. State, 214 Ga. 343(3), 105 S.E.2d 304; and Ferguson v. State, 218 Ga. 173(1), 126 S.E.2d 798. Whitworth v. State, 155 Ga. 395(1), 117 S.E. 450, does not require a holding different from the one here made since that case was decided prior to the passage of the aforem......