Wilburn v. State

• Decision Date: 11 March 1914
• Docket Number: 244.
• Citation: 81 S.E. 444,141 Ga. 510
• Parties: WILBURN v. STATE.
• Court: Georgia Supreme Court

81 S.E. 444

141 Ga. 510

WILBURN v. STATE.

No. 244.

Supreme Court of Georgia

March 11, 1914

Syllabus by the Court.

Civ Code 1910, § 4861, confers power upon the judges of the superior courts in convention assembled to establish uniform rules of practice throughout the several circuits of this state. Rule 5 of those so established in July, 1907, in providing the time for argument, declares: "In capital felonies counsel shall be limited to two hours on a side; * * * but if counsel on either side shall," before the argument in the case begins, "apply to the court for an extension of the time prescribed for argument in this rule and shall state in his place, or on oath, in the discretion of the court, that he or they cannot do the case justice within the time prescribed, and that it will require for that purpose additional time, stating how much additional time will be necessary, the court shall grant such extension of time as may seem reasonable and proper." Civ. Code 1910 § 6264.

(a) On the trial of one charged with murder, leading counsel for the accused applied for an extension of 4 hours' time for argument in behalf of the accused, and brought himself within the provisions of the rule. The judge declined to grant the request, but stated that 3 1/2 hours would be allowed each side, and that he would endeavor not to curtail counsel in argument. During the concluding argument of the leading counsel for the accused, and after he had consumed 4 hours and 10 minutes in his argument --associate counsel having consumed 30 minutes additional time--the judge stated to him that he would be allowed 10 minutes to close, and by reason of such statement the argument was closed within 10 or 15 minutes thereafter. Held: Under the rule the court is not obliged to grant the additional time requested, but "may grant such extension of time as may be reasonable and proper," thus investing the court with a legal discretion to allow such additional time as may, from the character, and all the circumstances of the case, seem reasonable and proper. In view of the facts in this case there was no abuse of discretion on the part of the court. The interruption by the judge, when counsel for the accused had already consumed 1 hour and 10 minutes more than the time allowed, and permitting counsel to continue the argument for 10 or 15 minutes longer, was no cause for a new trial on the ground that it prejudiced the accused, in that it tended to impress the jury that his "counsel had spoken long enough." Nor on the ground that three speeches were allowed in behalf of the state while only two speeches were made for the accused.

Marriage relates the husband to the wife's kindred, but does not relate any of his kindred to hers. Consequently the third or fourth cousin of the husband of the decedent's sister was not, for that reason, incompetent to try one charged with the murder of the decedent. Burns v. State, 89 Ga. 527, 15 S.E. 748; Miller v. State, 139 Ga. 719, 78 S.E. 181.

(a) The court properly refused to declare a mistrial on the ground of the alleged disqualification of such a juror.

(b) "It is well settled that the first ten articles of amendment to the Constitution of the United States were not intended to limit the powers of the states, in respect to their people, but to operate on the national government only." Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Brantley v. State, 132 Ga. 573, 64 S.E. 676, 22 L.R.A. (N. S.) 959, 131 Am.St.Rep. 218, 16 Ann.Cas. 1203. It follows, of course, that the provisions of the fifth amendment, to the effect that no one shall be compelled in any criminal case to be a witness against himself, had no application in this case.

(c) As the juror was not disqualified, there was for this reason, if for no other, no merit in the assignment of error that the refusal to declare a mistrial for the alleged disqualification of the juror was a violation of the provisions of the fourteenth amendment of the Constitution of the United States.

To disqualify one from being a juror in a criminal case, he must have formed and expressed an opinion, either from having seen the crime committed, or from having heard the testimony under oath. One who from some other cause has formed and expressed an opinion and which is not fixed and determined, and who indicates his competency by answering the statutory questions on his voir dire, is not an incompetent juror. Westmoreland v. State, 45 Ga. 225; Blackman v. State, 80 Ga. 785, 7 S.E. 626; Fogarty v. State, 80 Ga. 450, 5 S.E. 782; West v. State, 79 Ga. 773, 4 S.E. 325. See, also, Norton v. State, 137 Ga. 842, 74 S.E. 759.

(a) Applying this rule to the facts of the present case, the judge did not err in holding competent the two jurors who, the defendant contended, were disqualified and whom he struck by reason of the ruling of the court.

"No person shall be compelled to give testimony tending in any manner to criminate himself." Civ. Code 1910, § 6362. Accordingly, the court did not err in leaving it optional with a witness for the state to answer the question whether or not he had been criminally intimate with the wife of the decedent.

A confession of guilt is admissible in evidence when voluntarily made, without being induced by another, by the slightest hope of benefit or the remotest fear of injury. Pen. Code 1910, § 1032. The mere fact that the accused was in custody, or under arrest at the time the confession was made, did not render it incompetent if in fact it was made voluntarily within the legal meaning of the term. Hilburn v. State, 121 Ga. 344, 49 S.E. 318; Green v. State, 124 Ga. 343, 52 S.E. 431.

(a) It appears from the evidence submitted by the state that the confession objected to was freely and voluntarily made, at least so far as to be admissible in evidence, leaving the jury to finally pass on the question; and it was not inadmissible because made at night, in the woods, while the accused was handcuffed and in the presence of a deputy sheriff and a detective, and while being transferred from one jail to another at the instance of his father.

(b) The admission in evidence of a confession voluntarily made, without being induced by another by the slightest hope of benefit or the remotest fear of injury, does not contravene the provisions of the state Constitution that no person shall be compelled to give testimony tending in any manner to incriminate himself, nor is it inimical to anything contained in the 14th amendment to the Constitution of the United States.

(c) It appearing that the preliminary examination as to the admissibility of the confession was conducted before the judge in the absence of the jury, no statement then made by the judge could prejudice the jury against the accused. As already ruled, the provisions of the fifth and sixth amendments to the Constitution of the United States are not applicable to trials in state courts.

(d) On such examination, in the absence of the jury, the state made out a prima facie case for the admission of the confession; the court was not bound, before allowing it to go to the jury, to hear evidence on behalf of the accused tending to show coercion or improper inducement in its procurement. Irby v. State, 95 Ga. 467, 20 S.E. 218; Adams v. State, 129 Ga. 248, 58 S.E. 822, 17 L.R.A. (N. S.) 468, 12 Ann.Cas. 158. And this is true though the witnesses sought to be introduced by the accused on such preliminary examination were present with the accused and the witnesses for the state, who testified as to the confession, when the state contended it was made.

It was not cause for a new trial that the court, in defining circumstantial evidence and in instructing the jury as to the law on that subject in the same connection gave to the jury the definition from the Code of "sufficient evidence," "cumulative evidence," "direct evidence," and "presumptive evidence."

After giving the jury the definition of circumstantial evidence,...