Opinion
17462.
ARGUED MAY 15, 1951.
DECIDED JUNE 11, 1951. REHEARING DENIED JULY 10, 1951.
Murder. Before Judge Edmondson. White Superior Court. February 5, 1951.
Irwin R. Kimzey, Hamilton Kimzey, and Herbert B. Kimzey, for plaintiff in error.
Eugene Cook, Attorney-General, Jeff C. Wayne, Solicitor-General, and Abit Massey, contra.
1. Where females are placed in the jury box and some are drawn for jury service, though none were on the panel put upon the accused, which panel contained the names of 48 or more male jurors who had been properly selected, drawn and summoned, the overruling of a challenge to the array by reason of the names of females being put in the jury box, whether right or wrong, did not injuriously affect the cause of the accused.
2. "One who is not an expert or practicing physician may, after describing the wound, give his opinion that it caused death." Everett v. State, 62 Ga. 65 (3); McLain v. State, 71 Ga. 279 (4); Pinson v. State, 184 Ga. 333 (1), ( 191 S.E. 95).
3. "A charge to the jury on circumstantial evidence is required only when the case is wholly dependent thereon." Williams v. State, 196 Ga. 503 (1), ( 26 S.E.2d 926), and citations.
4. Where, in charging the jury on their right to recommend mercy, the court charged: "You do not have to give any reason why you recommend mercy, and in the event you decide to do that, you believe under the laws and the evidence that should be your verdict, the form of your verdict would be, `We the jury find the defendant guilty and recommend mercy,'" such charge by including the phrase "you believe under the laws and evidence" did not circumscribe or restrict the jury in their right to recommend mercy. Wheat v. State, 187 Ga. 480 (3), ( 1 S.E.2d 1), and citations.
5. The charge of the court on the subject of impeachment, though containing an erroneous statement, was favorable to the accused.
6. The charge on the question of the credibility of the witnesses under Code § 38-1805 was not erroneous for any reason assigned.
7. The portion of the charge excepted to under the 6th ground of the amended motion is not subject to the attack made.
8. The court did not err in failing to charge upon the subject of involuntary manslaughter, or of voluntary manslaughter, as there was no evidence to authorize a charge on either.
9. The evidence was sufficient to authorize the verdict.
No. 17462. ARGUED MAY 15, 1951 — DECIDED JUNE 11, 1951 — REHEARING DENIED JULY 10, 1951.
Pat Reece was convicted of murder without a recommendation to mercy. Upon the call of his case he filed a challenge to the array of jurors. After conviction he filed a motion for new trial, which was amended. The trial judge overruled the challenge to the array, and exceptions pendente lite were filed. The amended motion for new trial was denied. The exceptions are to these two rulings.
The challenge to the array, though made on eight separate grounds, is predicated on the fact that the jury commissioners of White County in revising the jury list had placed thereon the names of 26 or more females, and the jury impaneled to try the defendant had been drawn from the jury box containing those names. It was asserted that this was not a legal and valid jury and was contrary to law, in that females were not qualified under the law to serve as traverse jurors.
On the hearing of the challenge to the array, it was stipulated and agreed as follows: "That the jury commissioners of White County, Georgia, were regularly appointed and qualified. That in August, 1950, the jury commissioners met in regular session to revise the jury lists of White County, Georgia. That the jury commissioners in revising said list placed the names of 24 females as well as the names of negroes whose names appeared on the tax digest of White County, Georgia, in the traverse jury box of White Superior Court, from which box the jury panel placed upon the defendant was drawn. That at the October term, 1950, of said court 100 traverse jurors were drawn from said box, which number included four females, namely, Margie Nell Pharris, Mrs. Edith Palmer, Mrs. Frank B. Allen, and Mrs. Eula Carroll, who were summoned along with the remainder of those drawn for jury service at the October term, 1950, of the Superior Court of White County, Georgia. Five jurors so drawn, including Margie Nell Pharris and Mrs. Edith Palmer, failed to appear for jury service. Mrs. Frank B. Allen was 62 and was excused by the court. Mrs. Eula Carroll was an employee of the State Welfare Department and was excused by the court. Other male jurors were excused for various causes. No female juror appeared upon the panel placed upon the defendant and a full panel of jurors was placed on the defendant, composed of upright and intelligent men placed in the traverse jury box by the regularly qualified jury commissioners of White County. No question was raised as to the qualifications of any juror placed upon said panel, except the written challenge to the array filed in said case by the defendant."
Such facts as are essential to the rulings made on the general grounds and the amended motion will be related in the opinion.
1. As to whether females are qualified to serve on traverse juries, aid in answering this question would be found in article 6, section 16, paragraph 2 of the Constitution of 1945 (Code, Ann., § 2-5102); Code §§ 59-106, 59-112, 79-207, 102-102; also Pollard v. State, 148 Ga. 447 ( 96 S.E. 997); Powers v. State, 172 Ga. 1 (4) ( 157 S.E. 195); Cady v. State, 198 Ga. 99, 102 (b) ( 31 S.E.2d 38). But a determination of this question will not here be made. Even though it be conceded that a challenge to the array would be a proper mode of attack, and that the judge might have erred in his ruling, yet, under the agreed statement of facts, there was no injury to the defendant. It appears that, of the 100 jurors drawn, four were females, yet two of them did not appear and the other two were excused from jury service by the court. No female appeared upon the panel of 48 or more which was put upon the accused, nor was any question raised in the challenge to the array, under Code § 59-803, going to show that those put upon him were not properly impaneled, or ought not to be put upon him. Even though there might have been names of ineligible jurors in the box and drawn for jury service, yet, where the panel put upon the accused was properly impaneled, the accused suffered no injury. He had put upon him 48 or more competent jurors, as required under Code § 59-801. Where a plaintiff in error brings a case to this court, the burden is upon him to show error which is injurious to his cause. Brown v. City of Atlanta, 66 Ga. 72; Hall v. State, 202 Ga. 619 (2), ( 44 S.E.2d 234).
The case of Bridges v. State, 103 Ga. 21 (2) ( 29 S.E. 859), is distinguishable from the instant case. There the panel put upon the prisoner had not been drawn, selected, or summoned in the manner provided by law.
2-4. Headnotes 2, 3, and 4 require no elaboration.
5. Exception is taken to the following charge: "Gentlemen, to impeach a witness is to show to the satisfaction of the jury that such witness is unworthy of belief. A witness may be impeached by disproving the facts testified to by him by proof of contradictory statements previously made by him as to matters relevant to his testimony and to the case, or by evidence as to his general bad character. He may be sustained by proof of general good character, the effect of the evidence to be determined by the jury."
This charge contains an erroneous statement of the law. Where a witness is sought to be impeached by contradictory statements or by proof of general bad character, he may be sustained by proof of general good character. Code, §§ 38-1803, 38-1804. But where a witness is sought to be impeached only under Code § 38-1802, by disproving facts testified to by him, his testimony cannot be sustained by proof of general good character. Miller v. Western Atlantic R. Co., 93 Ga. 480 (1), ( 21 S.E. 52); Bell v. State, 100 Ga. 78 (1), ( 27 S.E. 669); Surles v. State, 148 Ga. 537 (6), ( 97 S.E. 538).
In the instant case, the State introduced two eyewitnesses to the homicide, and other witnesses for the State whose testimony as to conditions at the scene of the homicide could be taken as contradictory to facts testified to by the eyewitnesses. The accused introduced no evidence, but made a statement to the jury. There was no evidence by the State seeking to establish the general good character of either eyewitness. Though the charge was erroneous in so far as it stated that a witness sought to be impeached by disproving facts testified to by him may be sustained by proof of general good character, yet we cannot see how the accused was injured thereby. In effect the court charged that, if any evidence of the eyewitnesses for the State had been disproved; they could be sustained by proof of general good character. The court having so charged, the jury might well have taken the position that, the testimony of the eyewitnesses having been disproved, the absence of evidence as to their general good character discredited their testimony. Accordingly, this portion of the charge, though a misstatement of the law, was favorable to the accused. See, in this connection, Geer v. State, 184 Ga. 805 (2), ( 193 S.E. 776), and citations; Jones v. State, 193 Ga. 449 (1) ( 18 S.E.2d 844), and citations.
6. Exception is taken to the following charge: "Now, gentlemen, I charge you, you are made by law the sole and exclusive judges as to the credibility of the witnesses that have testified in this case, and in passing upon their credibility you will take into consideration all the facts and circumstances of the case, the witnesses' manner of testifying, their interest or want of interest, prejudice or bias, if any exists, their means and opportunity of knowing the facts to which they testified, the reasonableness or unreasonableness of their testimony, also the witnesses' personal credibility, in so far as the same may legitimately appear upon the trial of this case."
This charge is not subject to the criticism that it is confusing, argumentative, that it limits its consideration to those things enumerated, that it minimizes the effect of the defendant's statement, or by the phrase, "you will take into consideration." See, in this connection, Daniel v. State, 61 Ga. App. 663, 664 (2), ( 7 S.E.2d 204).
7, 8. These headnotes require no elaboration.
9. The testimony of the two eyewitnesses makes a case of unprovoked murder, and the jury verdict was amply authorized.
Judgment affirmed. All the Justices concur, except Head, J., who dissents.
As I construe the charge of the court dealt with in headnote 4, the right of the jury to recommend mercy was limited to "the laws and the evidence." The opinion cites as authority for the ruling made, Wheat v. State, 187 Ga. 480 (3). The charge of the court in the Wheat case, on the right of the jury to recommend mercy, was as follows: "Under the law of this state it is provided that the punishment for persons convicted of murder shall be death, but may be confinement in the penitentiary for life if the jury trying the case shall so recommend. . . And in determining what punishment the defendant shall receive you gentlemen may consider all the facts and circumstances of the case as disclosed by the trial, by the evidence, and by the statement of the defendant. In all homicide cases it is the right and province of the jury, in the event they convict the defendant, to recommend that he be imprisoned for life, or to recommend him to the mercy of the court, which would mean that he would be sentenced for life. And the question of whether the jury will or will not recommend mercy or life imprisonment is a matter solely within the discretion of the jury, and is not limited or confined in any case. There is no rule of law governing the jury with reference to the exercise of its discretion upon this question. If you should decide for any reason satisfactory to yourselves, or without any reason, to recommend that the defendant be imprisoned for life, then that would be binding upon the court and that would be the sentence imposed upon the defendant. The court would have no discretion in the matter." (Italics supplied.)
If the charge in the Wheat case was correct (and the writer so construes it), then the charge in the present case placed an undue limitation on the jury with reference to their right to recommend mercy.
If the case of Vann v. State, 83 Ga. 44, 56 (11), ( 9 S.E. 945), can be said to support the charge of the court in the present case, the Vann case must yield to the case of Hill v. State, 72 Ga. 131, which is a full-bench decision, wherein the court ruled: "The Code leaves it in the discretion of the jury as to whether they will recommend imprisonment for life in the penitentiary of a person convicted of murder; they are not limited or circumscribed in any respect whatever; nor does the law prescribe any rule by which the jury may or ought to exercise this discretion. Therefore, a charge that the jury, in considering the question of recommending to mercy, should not be governed by their sympathies, but by their judgments, approved by the evidence in the case and the law applicable to it, was error." The rule announced by this court in the Hill case has not been overruled. See also Cohen v. State, 116 Ga. 573 ( 42 S.E. 781).
While there may be some conflict in the decisions of this court subsequent to the first act of the General Assembly vesting power in trial juries to recommend mercy (see Long v. State, 38 Ga. 491; Regular v. State, 58 Ga. 264; Shaw v. State, 60 Ga. 246), the Hill case was the first decision by this court rendered subsequently to the passage of our present law vesting in the trial jury the right to make a recommendation of mercy, and should be controlling upon this court.
In Mims v. State, 188 Ga. 702, 705 ( 4 S.E.2d 831), this court approved the charge of the trial judge that a recommendation of mercy "is a recommendation which you have a right to make and attach to your verdict, in the event you should find the defendant guilty of murder. You may decline this recommendation with or without a reason, and you may decline to do so with or without a reason; you may do so as a matter of public policy or out of sympathy for the prisoner, or you may decline to do so for reason of public policy or on account of absence of sympathy for the accused. The granting of it in case of conviction is a mere matter of grace that comes after guilt is established. The Code leaves it in the discretion of the jury as to whether they will recommend imprisonment for life in the penitentiary of a person convicted of murder; they are not limited or circumscribed in any respect whatever, nor does the law prescribe any rule by which the jury may or ought to exercise this discretion."
Trial judges are not authorized to limit or restrict the right of the defendant to a recommendation of mercy. The charge as made in the present case had the effect of limiting the jury in their right to recommend mercy, and this limitation may have denied the defendant a substantial right guaranteed by the Constitution and laws of this State. It makes no difference that the evidence may have been of such a character as to demand a verdict of guilty, since in no case can it be said that a general verdict of guilty, without a recommendation of mercy, is demanded as a matter of law. Glover v. State, 128 Ga. 1 ( 57 S.E. 101); Barfield v. State, 179 Ga. 293, 294 ( 175 S.E. 582); Carter v. State, 204 Ga. 242 ( 49 S.E.2d 492); Glenn v. State, 205 Ga. 32, 35 ( 52 S.E.2d 319); Jones v. State, 207 Ga. 379, 380 ( 62 S.E.2d 187). Substantial rights of a defendant should not be whittled away piecemeal because the evidence may lead the reviewing court to the inescapable conclusion that the defendant is guilty as charged.
For the foregoing reason I dissent from the ruling in headnote 4, and from the judgment of affirmance.