Opinion
13303.
JUNE 12, 1940.
Murder. Before Judge Kent. Laurens superior court. February 5, 1940.
Paul Miller and Lester F. Watson, for plaintiff in error.
Ellis G. Arnall, attorney-general, J. Roy Rowland, solicitor general, E. J. Clower and C. E. Gregory Jr., assistant attorneys general, contra.
1. The verdict of guilty of murder was authorized by testimony for the State that the shooting of the deceased by the defendant was without justification or provocation.
2. Where, under the amendatory act of August 21, 1911 (Ga. L. 1911, p. 74; Code, § 27-1201), a defendant moves for a change of venue on the ground of danger of lynching or other violence, his remedy from an adverse ruling is by direct bill of exceptions to the Court of Appeals. But where he moves for a change of venue under the original law, retained in the Code section, merely on the ground that he can not obtain an impartial trial in the county of the alleged crime, his remedy is by exception pendente lite, and not by exception in a motion for new trial after conviction. Even as grounds in the motion for new trial, the exceptions that the court did not permit the defendant to introduce evidence in support of his motion to change the venue could not be considered, for the additional reason that the nature of such evidence is in no wise shown.
3. The showing of the defendant in his motion for continuance was not such as to require a disturbance of the judge's discretion in refusing a continuance.
4. No written request having been made to charge on the law of confessions or incriminatory admissions, and the conviction being authorized by independent evidence, the judge did not err in failing to charge on that law.
5. The alleged newly discovered testimony fails to show any abuse of discretion in refusing a new trial on that ground. Furthermore, the affidavits supporting the witness were deficient in failing to state the names of his associates.
No. 13303. JUNE 12, 1940.
Fred Anderson was convicted, without a recommendation, of the murder of A. J. Page with a pistol. Before arraignment the defendant moved for a change of venue, on the grounds that he was a negro charged with the death of a white man and an assault on two other white men, and that it was impossible to obtain a fair and impartial trial in the county of the indictment, because these men were related or bound by close business or personal ties to jurors and prospective jurors, and because newspaper publicity had caused a widespread prejudice against the defendant. The motion was not verified. No exception pendente lite was taken. The sole exceptions are grounds in the motion for new trial, that the ruling was error "for the reasons set forth in said motion to change the venue, and movant was prepared to prove," and that "the court erred in not permitting movant to offer, in support of his motion for change of venue, sworn proof which he was then prepared to offer." There is nothing in the record to show what such evidence was, or to indicate its character.
For the State, one of the companions of the deceased testified that the defendant shot the deceased and shot the witness in the back while they were on a city street; that there had been no previous difficulty with the defendant or "with another darkey;" and the first that he knew of any trouble was the shooting which "came from back of us." A companion of this witness and the deceased testified to like effect as to the shooting; that neither of the two men who were shot "had a weapon in their hands;" that the deceased "had no altercation with any negro." He testified as to a previous argument by one of the companions with a negro in a shoe-shine shop; but that "I did not see anything to provoke an argument or anything else to make [the defendant] shoot, and he was not in the fracas at the shoe-shop;" and that "we had not had any altercations with colored folks that night, we didn't brush by a negro and start an argument, we didn't have any words with this negro." Another companion testified, that there were "four of us" from the same section together; that "we had a little altercation with a boy that worked" at the shoe-shop, but "I did not see the defendant there, and we did not have an altercation with him;" that "all of a sudden the pistol fired, and that was the first I knew of the trouble, and I know of no reason why the negro got mad enough to shoot. Just before that another negro brushed against me; we just said, `Mind where you are going.' That was not the same negro that shot the deceased. It is not true that this defendant jerked the other negro out when we all threw him down; the one that brushed against us got away; when the shooting started, all of us ran that were able to;" and the defendant "shot four times." A woman testified: "I was along there with [the defendant] the night he killed this boy. I didn't see him trying to do anything to [the defendant]. I didn't see any knife in the white boy's hand. I don't know whether I could have seen it, if he had one. . . I did not say there was not a knife, but I did not see it." She further testified, that "just before the shooting these boys jumped on [another man], there was a heap of them, I don't know how many;" that this other man "ran before the shooting. These boys might have turned on [the defendant] then — I don't know. I don't know of any other reason he had to shoot them. I was kinda getting out of the way myself. I was about as far from [the defendant] as here to the jury-box; and when I saw he was fixing to shoot, I got out of the way."
The defendant stated to the jury: "I was walking down the street, and I saw these boys standing there with Walter Anderson. One of them caught Walter around the waist, and one of them started at him with a knife. I run in and tried to get him out, and one of them started on me with the knife, and I backed up, and he almost caught me up here [indicating on his body], and I had to shoot him. I had to shoot him to keep him from killing me; he had a long knife coming on me. They wanted to get on me because I snatched Walter out. He brushed up against one of them, and they asked him what he meant, and he said he did not mean any harm, and they jumped on him." Other essential facts, relating to the special grounds of the motion for new trial, appear in the opinion.
1. The verdict of murder was authorized by the testimony of the State's witnesses that the deceased and his companions had no difficulty with the defendant before the shooting, that the deceased and his companions were unarmed; and that the defendant, in shooting four times, killing the deceased and wounding a companion, shot without justification or provocation.
2. Under the rule stated in Coleman v. George, 140 Ga. 619 (2), 621 ( 79 S.E. 543), the provision in the act of August 21, 1911 (Ga. L. 1911, p. 74; Code, § 27-1201), relative to a change of venue in criminal cases when there is a probability of lynching or other violence, and providing for a direct bill of exceptions operating as a supersedeas, which under the constitutional amendment of 1916 (Code, § 2-3009) must be taken to the Court of Appeals, is not applicable to the denial of a petition which is "based solely upon the ground that an impartial jury can not be obtained in the county where the crime is alleged to have been committed." But where, as here, the motion for a change of venue is based on the part of § 27-1201 which embodies the law as it existed before the 1911 amendment, on the ground that an impartial jury can not be obtained in the county of indictment, the denial of the motion is a proper ground for exceptions pendente lite. Coleman v. George, supra. The rulings in that unanimous decision must be given effect in preference to the later ruling in Wilson v. State, 173 Ga. 275, 283 ( 160 S.E. 319), the correctness of which later case was questioned in Lowe v. State, 185 Ga. 113, 114 ( 194 S.E. 527).
( a) Under the above holdings, where the defendant moved for a change of venue solely on the ground that he would be unable to obtain a fair and impartial jury in the county where he was indicted, and he failed to take exceptions pendente lite to the denial of his motion, such a ruling was not a proper ground of his motion for a new trial. Williford v. State, 121 Ga. 173 (2), 178 ( 48 S.E. 962).
( b) The exceptions in the motion for new trial, which complain generally that the court erred in not permitting the defendant to offer evidence in support of his motion for a change of venue, but which in no wise indicate the nature or character of such evidence, for this additional reason can not properly be considered. Ferguson v. McCowan, 124 Ga. 669 (2) 671 ( 52 S.E. 886); Smith v. Smith, 133 Ga. 170 ( 65 S.E. 414); Price v. State, 170 Ga. 294 (3) ( 152 S.E. 572); Williams v. State, 186 Ga. 251, 259, 260 ( 197 S.E. 838); Cook v. State, 22 Ga. App. 770 (2), 774 ( 97 S.E. 264).
3. "Motions for continuances are addressed to the sound discretion of the trial court; and the ruling of the judge below upon the question will not be disturbed, unless it appears that the refusal to grant the continuance was an abuse of his discretion." Lyles v. State, 130 Ga. 294 ( 60 S.E. 578); Hilton v. Haynes, 147 Ga. 725 (2) ( 95 S.E. 219); Code, § 81-1419. No abuse of discretion in the refusal of the motion in this case appears, where nothing was shown in its support, except that counsel appointed to represent the defendant in his trial on November 5 had, since notified on October 29 as to such appointment, "been in court or engaged in important business in another county;" and that counsel had "been informed" that there were two eye-witnesses of the alleged crime, whose names were given, but who were not shown to have been subpoenaed, and the nature of whose testimony was not stated. See Code, § 81-1410, as to the showing required where a witness is absent.
4. In the absence of any timely written request, the failure to charge the jury on the law of confessions or incriminatory admissions was not error, where there was evidence, independently of such confessions or admissions, to sustain the conviction. Allen v. State, 187 Ga. 178 (3) 180 ( 200 S.E. 109); Sellers v. State, 99 Ga. 212 ( 25 S.E. 178); Gore v. State, 162 Ga. 267 ( 134 S.E. 36); Nail v. State, 125 Ga. 234 (3) ( 54 S.E. 145).
5. The last ground is based on alleged newly discovered evidence of a witness who stated in his affidavit, that he "was standing at the corner . . some fifty or sixty feet from where the shooting took place;" that his "attention was attracted toward the scene by the sound of a scuffle;" that he "looked that way and saw three white boys scuffling or fighting with a negro, a negro broke loose from the small group that was scuffling and ran just an instant before the shooting started;" that he "could not tell who did the shooting, but two negroes ran by me, one considerably ahead of the other; both turned into [a] street, and one went into the alley behind [a] store . . the other continued on down [the] street." There were affidavits as to diligence, and as to the evidence being newly discovered. But while there was a general statement in the supporting affidavits as to the character and credibility of the witness that "his associates are persons of good character and standing," the names of such associates were not stated. The testimony of the witness showed no detail of the alleged disturbance, what part the defendant took therein, or anything tending to justify or mitigate the charge of murder. At most it merely corroborated part of the defendant's statement as to the existence of a disturbance between the deceased with his companions and the defendant with another negro before the homicide, which was not of sufficient importance to probably produce a different result at another trial, and to authorize this court to hold that the judge abused his discretion in refusing a new trial on this ground. Furthermore, "an affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter-showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground." Ivey v. State, 154 Ga. 63 (6) ( 113 S.E. 175); Overby v. State, 183 Ga. 353, 360 ( 188 S.E. 520); Knight v. State, 59 Ga. App. 450 (2) ( 1 S.E.2d 223); Faulk v. State, 56 Ga. App. 13 (2) ( 192 S.E. 79). The supporting affidavits in this case were thus deficient.
Judgment affirmed. All the Justices concur.