Douglass v. State , 152 Ga. 379 ( 1921 )

Gilbert, J.

1, 2. The first and second headnotes, relating to the fourth, seventh, and tenth grounds of the amended motion for a new trial, may appropriately be discussed together. In these grounds complaint is made of the conduct of the jury, after the case had -been submitted to them for consideration, in visiting the grave of the deceased sheriff, for whose homicide the accused was on trial, and also the grave of a former attorney of that county, Vho had volunteered to assist in the prosecution of the case. These grounds are more elaborately set out in the statement of the case preceding this opinion. It will suffice to say here that the ground of the motion based upon the misconduct of the jury in visiting the cemetery is supported by an affidavit of one of the .jurors, to the .consideration of which there was no objection, which, omitting the formal parts, is as follows: “ I was a member of the jury which tried the case of The State v. James Douglass, on July 7, 1921, and which rendered a verdict of guilty, July 9, 1921. At the end of the day of the trial, the jury seemed hopelessly divided, and the next day the jury requested a recharge on the law of murder, which was given about 10:20 the second day. At the end of the second day the jury reported to Judge Wright that it was still unable to reach a verdict, and seemed hopelessly disagreed. After this they went to the cemetery where sheriff Catron was buried. On the morning of the third day, July 9th, the jury again went to the cemetery where the slain sheriff was buried. After being out about forty hours the jury seemed to be still hopelessly disagreed, but they went to the grave of the sheriff with perfectly good motiyes, and had no idea of doing anything improper. As they had been unable to make a verdict after 40 hours deliberations, a number of the jurors prayed over the sheriff’s grave fervently, that they might receive spiritual guidance and direction in reaching an agreement and making their verdict. This was followed by an agreement of all the jurors to return a verdict of guilty, without recommendation, and the jury so reported within a few minutes thereafter,” There was also an affidavit by a deputy sheriff who was in charge of the jury, in which he swore that the jury did visit the cemetery “ in a body, walked around through the cemetery, stopped at several graves, particularly at the grave of J. P. Shattuck, but recently died [he being the deceased attorney mentioned in the motion], the jurors discussing the value of Mr. Shat-tuck as a man to the communit}!-, and also his financial worth; incidentally some one of the jurors inquired where Mr. Catron was buried, and juror Sam Smith stated that he knew where he was buried, and would show the jurors; that the jury went to the grave of Mr. Catron, and there was not at any time any prayer or invoking of divine guidance while at the grave of Mr. Catron, neither did deponent hear any suggestion from any source that they should engage in prayer at said grave, and there was no audible prayer of any sort uttered at the grave, nor any suggestions thereof.” The juror who made the above-quoted affidavit, retracted, in a subsequent affidavit, all of that portion thereof which stated that the jurors held prayer at the grave of Mr. Catron, and further swore that no comment was made at the grave touching the verdict to be rendered in the case; neither was the visit to said grave in any way referred to in the consideration of the verdict to be returned in the case. This juror swore that in signing his original affidavit he did not understand that the affidavit stated, and that he did not intend to state, that the jurors held prayer at the grave of Mr. Catron. The juror did not deny all that was contained in his original affidavit; therefore the facts remain, that at the end of the day of the trial the jury seemed hopelessly divided, that they had requested a recharge on the law of murder, which was given on the second day, that at the end of the second day the jury reported to the judge that it was still unable to reach a verdict and seemed hopelessly disagreed, that after this they went to the cemetery where Mr. Catron was buried, that on the morning of the third day they again went to the cemetery " where the slain sheriff was buried,” that after being out about forty hours the jury still seemed to be hopelessly disagreed, " but they went to the grave of the sheriff with perfectly good motives and had no idea of doing anything improper.” Whether there were prayers at the grave or not, a verdict of guilty was agreed upon after a long delay and after the visits of the jury to the graves. Under these circumstances, -especially when viewed in connection with the general setting that surrounded the case, as shown by the entire record, it is scarcely probable that the jury were not influenced by. their visits to the cemetery. They may be, and doubtless are, perfectly honest and sincere in the belief that they were not influenced. The sanctity and purity of jury trials necessarily depend upon the absolute freedom of the jury from outside influences. It is well-nigh impossible to eradicate such influences as these from the minds of jurors. We are forced to this conclusion by the competent evidence contained in the affidavit of the deputy sheriff, even if we totally disregard the affidavit of the juror tending to impeach his verdict, which we would have been bound to hold incompetent if the same had been objected to, and which the trial judge would have been authorized to disregard even though it was not objected to by the State’s counsel.

The seventh ground of the amended motion complains that after the case had been submitted and the jury were in the room provided for them and engaged in considering their verdict, numbers of people gathered in the court-yard in sight of the jurors as they came to the windows, and one of the number at said gathering produced a rope in the sight of the jurors looking out of the windows, and proceeded to- tie a “ hangman’s knot or noose ” in the rope, and lifted the same and shook it and drew it in view of the jurors looking out of the window, and that this was done several times. These facts were sworn to by three witnesses, all of whom are supported by affidavits as to their good character. On the hearing of the motion for a new trial the State submitted counter-affidavits denying in part the facts alleged in this ground of the motion. One of these affidavits was that of Sam Burgess, alleged by the accused to have been the person who tied the hangman’s knot. The material portion of the affidavit of Burgess was as follows : “ It is wholly untrue that on the 8th clay of July, 1921, while the jury was considering their verdict in the above-stated Case, that he produced a rope, tied said rope into a running noose or hangman’s knot, and [did] lift said running noose into the view of said jurors in the window and shake said running noose and pull said running noose or hangman’s knot; and it is wholly untrue that he said, We will show the jury what we want done ,with this man.’ Deponent says that on the 8th day of July, ,1921, ■’with others, he was standing in the street just a few feet east of the Shearer furniture store; that at the time the jury considering the above-entitled cause was confined in a jury-room on the second floor of the court-house, across the street from deponent, which said room has a window opening on the street in which deponent was standing, but deponent was approximately one hundred and fifty feet from this window; that there was a two-horse wagon standing in the street between deponent and the court-house; that deponent and others were discussing the case the jury were considering, and speculating on the probable verdict. Deponent, during the course of the conversation, walked over to the wagon 'standing in the street, picked up a leather whip lying in the wagon, and asked some one if he could tie a hangman’s knot; that some one in the crowd then took the whip and tied some sort of 'knot, but deponent does not know that this was a hangman’s knot. This whip was not held up by deponent in the sight of the jurors or otherwise, and deponent made no remark about showing the jury what we want done with this man, or similar remark. De■■ponent further says that the whip could not possibly have been seen by the jury, on account of the wagon standing between deponent and the jury-room, and deponent made no remark of any ■sort which could have been heard by the jury. Deponent further says that at the time he stepped towards the wagon to get the whip he noticed that some of the jurors had their backs towards the window, and that none of them were looking out of the window or paying any attention to anything on the street.” Affidavits of the jurors were also submitted by the State, the substance of which were denials on the part of the jury that they- saw any person exhibit to them any rope in which a hangman’s noose or similar noose had been tied, and did not hear any person make any statement showing the jury what they should do with the accused. Out of the affidavits pro and eon, on this subject, the one indisputable fact is disclosed, that some one, standing about 150 feet from the window of the room in the court-house where the jury considering the case were confined, tied a “hangman’s noose” or similar knot in a rope or whip; that some of the jurors were standing at the window with their backs to the court-house yard; and that ten only of the jurors swore that' they did not see the tying of the knot and did not hear anything said by those connected with the episode. As shown above, the jury were long divided upon the question of what verdict they should return; they had visited the grave of the “slain sheriff,” had visited the grave of the deceased attorney who had volunteered to prosecute the case against the accused, had discussed the public services of this attorney and the value of his life to the community. The slightest demonstration within the view and comprehension of the jury may have been sufficient to turn the delicate scale of justice, so evenly balanced as' it seems to have been during the deliberations of the jury. “ The object of all legal investigation is the discovery of truth,” and under'our law the only source from which the jury is permitted to gather the facts for the discovery of truth is from the trial itself. Influences such as those referred to in the grounds of the motion for a new trial now under discussion may be so slight and so subtle that the jurors themselves may be wholly unaware of them; but where the integrity of jury trials is at stake, verdicts resting under such a cloud must be set aside. We think it follows from what has been said above that the court erred in not granting a new trial.

3, 4. Complaint is made that the court instructed the jury as follows: “ However, I charge you if the officer, Mr. Catron, the deceased, knew that the defendant was about to make an escape, he would have a right to make an arrest to prevent such an escape, or the defendant was committing a crime, of which the officer knew.at the time, in the presence of the officer, then the officer would be authorized to make an arrest for such crime; and if he was so authorized, it would have been the duty of the defendant to have submitted to the arrest, and if he did not submit, then the officer would have been authorized to use such force as was necessary to perfect this arrest, even to the extent of taking the life of the defendant; and if the defendant took the life of the officer, the deceased, at the time the deceased was attempting so to make the arrest legally, if he did attempt legally so to make the arrest, and the defendant knew at the time he was an officer so attempting a legal arrest, the defendant might be guilty of the offense of murder as charged. What the truth about all this is jou are to determine from the evidence you have heard from the stand.” The charge was an instruction on the law of arrest without a warrant, when the accused was attempting to escape, or the crime was committed in the presence of the officer, etc. Was this error requiring the grant of a new trial? Under all of the facts of this case we think it was. The evidence adduced on the trial as to how the killing occurred and the facts and circumstances which preceded it are, for all practical purposes, without conflict. . The facts in this case demonstrate that the sheriff entertained an erroneous idea as to his right to make an arrest for a misdemeanor without a warrant and without disclosing his official character. It should be obvious to all fair-minded and law-abiding citizens that it is equally as important for arresting officers to confine themselves within their legal rights in making arrests as it is the duty of the citizen to peacefully submit when a legal arrest is made or sought to be made. The binding force of the law must rest upon all alike, the good and the bad, the public official and the private citizen. For the arrest of one charged with a misdemeanor our Penal Code, § 917, declares when, and when only, an officer may make an arrest without a warrant, to wit: “ An arrest may be made for a crime by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, .or the offender is endeavoring to escape, or for .other cause there is likely to be a failure of justice for want of an officer to issue a warrant.” If the offense is a felony, greater latitude is allowed; but this question need not be considered in the present case. We will undertake to examine carefully the statute just quoted, as applied to the facts of the case. The arrest was sought to be made by an officer, and on the trial of the cause the legality of that arrest was properly made an issue under the statute in question. Admittedly, the officer was without a warrant. First: Was the offense committed in his presence? Under authority of the case of Pickett v. State, 99 Ga. 12 (25 S. E. 608, 59 Am. St. R. 226), this question must be answered in the negative. There it was held that “ an arresting officer has no authority, without a warrant, upon mere information that another is carrying a concealed pistol, to arrest the latter and search his person for the purpose of ascertaining whether or not .he is in fact violating the law prohibiting carrying concealed weapons. Even if he was so doing, the offense was not, in legal contemplation, committed in the presence of the officer, and such an arrest and search are unauthorized by law, and are, within the meaning of the constitution, unreasonable.” There the offense.for which the arrest was undertaken, as in this case, was a misdemeanor. In the opinion Mr. Justice Lumpkin said: " ‘ The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated/ Code, § 5008 [Code of 1910, § 6372]. If any search is unreasonable and obnoxious to our fundamental law, it is one of the kind with which we are now dealing. Even if the person did in fact have a pistol concealed about his person, the fact not being discoverable without a search, the offense of thus carrying it was not, in legal contemplation, committed in the presence of the officer, and the latter violated a sacred constitutional right of the citizen in assuming to exercise a pretended authority to search his person in order to expose his suspected criminality.” Second: Was the offender endeavoring to escape? As has already been stated, there is no evidence tending to show that the offender made any. effort to escape until after the fatal shooting had occurred. On the contrary, unfortunately, he stood his ground, and the most unfortunate tragedy took place. Compare the case of Giddens v. State, 152 Ga. 195 (108 S. E. 788). Was there, for other cause, likely to be a failure of justice for the want of an officer to issue a warrant? This unquestionably must be answered in the negative, since the undisputed facts show that the sheriff’s agent in Chattanooga gave him the information about six o’clock in the evening, while the sheriff was at the county seat. It is not even suggested that an officer to issue a warrant was not available. While the court charged the jury correctly on other principles of law involved, including the law of self-defense, based upon thé contention that the defendant killed the deceased in the honest belief that he was about to be robbed, we are of the opinion that the instruction in regard to the right to make an arrest without a warrant was unauthorized under the facts of the case, and that a new trial should be granted. Perhaps it will serve a useful purpose to iterate here a caution to arresting' officers that it is their duty, under circumstances such as shown by the record in this case, to disclose their official character to persons whom they seek to arrest; to provide themselves with warrants in furtherance of justice, of which they are chosen ministers. In the case of Davis v. State, 79 Ga. 767, 769 (4 S. E. 318), where the prosecution was for a felony and the question of the legality of an arrest was in issue, the court said: “ If Tompkins [the deceased] was an officer of the law, he should have informed the defendant of the fact, and of the additional fact that he had a warrant for his arrest. The officer must at the time be engaged in executing his duties, and the defendant must be notified thereof; and unless there he notification or knowledge to this effect, the killing of the officer will not be murder. . . There was no notice given the defendant by Tompkins that he was an officer, or that he had a warrant for his arrest.’ ” Compare Croom v. Stale, 85 Ga. 718 (11 S. E. 1035, 21 Am. St. R. 179); Snelling v. State, 87 Ga. 50 (13 S. E. 154); Thomas v. State, 91 Ga. 204 (18 S. E. 305); McCray v. State, 134 Ga. at p. 427 (68 S. E. 62, 20 Ann. Cas. 101); Graham v. State, 143 Ga. at p. 445 (85 S. E. 328, Ann. Cas. 1917A, 595); McCrackin v. State, 150 Ga. 718 (105 S. E. 487). The lawfulness of the arrest, or the contrary, is an extremely important matter in a case of this character, as it may determine whether the homicide is murder, voluntary manslaughter, or justifiable homicide.

Judgment reversed.

All the Justices concur.