Fairfield v. State , 1923 Ga. LEXIS 143 ( 1923 )

Russell, C. J.,

dissenting. After the most careful study of this case and the most painstaking investigation of every detail of the record that lies within my -limited capacity, I am compelled to dissent from the judgment of affirmance in this case. I dissent quoties toties. I am not thinking of the defendant. From the countenance of the case as developed from the evidence he seems to be a bad citizen. He may be guilty not only, in the instance involved in this trial, but of other crimes, richly deserving death itself. I do not say that the evidence showed this, for I shall express no opinion upon the testimony in the trial which we are reviewing. As the trial was had, I will say that the jury could not have found any other verdict than the one which was returned by them. I drop the defendant out of sight, and likewise the evidence in the case except in so far as it is necessary to refer to it in the consideration of the exceptions of law presented by the record. Conceding for argument’s sake that the plaintiff in error for every reason that can be imagined deserves death, I must protest the injury to the law which I seem to foresee .in the creation of a precedent which will be established by some of the rulings of the majority in the case now sub judice. I have no criticism for my learned and experienced brethren; measured by the doctrine of probability as deduced both from numbers and experience, it may be probable that they are right and I am wrong; but claiming that I am. actuated by motives no less conscientious than theirs, I must express my dissent from their ruling upon two very important points raised by the present record, and give my reasons for the faith that is in me. A dissent on the part of one judge is ineffectual to alter the judgment or change the current of the law; so I need say nothing as to the assignments of error in the present record other than those just referred to.

1. The defendant in the court below, at the conclusion of the evidence for the State, sought to prove an alibi and to prove the falsity of an alleged confession attributed to him, and offered three witnesses in turn by whom he sought to establish an alibi, and the testimony of all of these witnesses was rejected and repelled severally and seriately upon objection of -the solicitor-general. The solicitor-general objected, “ because the testimony as to where the witnesses were on the night of May 29, 1921, is irrelevant and immaterial at this stage of'the trial, without any denial on the part of the defendant of the alleged confession shown by the State, insisting that the only relevant thing now is whether the confession is true, and that until he [the defendant] makes a denial or says that the confession was - made under circumstances on which the jury ought not to believe, he can’t collaterally attack it by showing that this man wasn’t with him; it being at this time entirely irrelevant and immaterial whether this witness was there or not, the State not having undertaken to show as a substantive fact that he was there, and the only issue before this jury is whether or not Fairfield did it.” When the witness Thomas was called to the stand he was asked where he was on the night of May 29, 1921, the same being the night of the alleged burning, and the State claiming that in the confession the defendant stated that the witness was with the defendant at the time of the burning and helped to burn the bridge. The solicitor-general objected to this evidence, on the ground that the defendant had not denied the confession that had been introduced, and that said evidence was irrelevant and immaterial. The court retired the jury, when counsel for the defendant stated to the court: “We expect to show by the witness that on the night of May 29, 1921, Mr. O. C. Fairfield [the defendant] carried him out to a picket post near the house of Mr. E; M. Bishop, or Ed Bishop, and that from the time he was left there until the next morning about 7 or 8 o’clock on the morning of May 30th, he was at and around that picket post; that he did not come to Crisp county by himself or in company with O. C. Fairfield, the defendant, or in company with any other person, but stayed at the picket post from about 7:30 in the evening of May 29 until 7 or 8 o’clock in the morning of May 30, 1921.” The objection of the solicitor-general, which we have just quoted, was sustained and the evidence repelled. The defendant next introduced Jim Bussell. When defendant’s counsel asked him the questions, “Where were you on the night of May 29 ? Did you see O. C. Fairfield that night at any time ? ” the solicitor-general objected to the evidence upon the ground that it was irrelevant and immaterial; and the jury having been retired, defendant’s counsel stated to the court: “We expect to show by this witness that he made his home with Mrs. M. L. Willingham, boarded at her house; that on the night of May 29, 1921, he was at his home at her house from nine o’clock on for the balance of the night; that he didn’t leave her house that night in company with this defendant, nor in company with any other person, and coiné to Crisp county, or go out of the city of Fitzgerald to any other place, but that he was at her boarding-house, his home, all night on the night of May 29th, 1921.”

The solicitor-general is frank enough to say that the exclusion of this testimony was technically erroneous, but insists that the error was cured by the fact that the rejected testimony was later admitted by the court. The learned attorney-general contends “that the evidence ruled out upon the alleged dictation of the solicitor-general was not of such nature and effect as to make the ruling of the court erroneous. It will be noticed from the defendant’s statement that he never did deny making a statement, although he claimed he had lied in making same. We contend that the court ruled properly on this matter; and that the court’s discretion as to what constitutes orderly procedure is one that will not be controlled by this court, unless it is shown conclusively that the ruling of the court was arbitrary, unreasonable, and oppressive.” It will be seen from the above that the attorney-general is still of the same opinion as that entertained by the solicitor-general at the time he made the objection that the testimony was irrelevant and immaterial until the defendant denied the alleged confession, or, in other words, that the court had the right to forbid the defendant to introduce any evidence tending to show an alibi unless and until he did deny the alleged confession. In my opinion both of the State’s counsel misconceive the exception and the error assigned. In the decisions in Reich v. State, 63 Ga. 616, Roberts v. Tift, 136 Ga. 906 (72 S. E. 234); Woods v. State, 137 Ga. 85 (4) (72 S. E. 908), cited by State’s counsel (as well as a large number of similar decisions which I have examined),the point was simply confined to the mere admission of testimony, and the rulings seem to arise in a large number of instances from the difficulty experienced by this court in determining what actually transpired in cases where exception was taken to the refusal of the court to admit certain evidence when it appeared in the same case from the record that the testimony was introduced. Thus originated the ruling. It has since been extended to cases where it is shown by the record that the court at one stage of the case refused to admit evidence, and later, changing his mind, permitted the introduction of the evidence formerly repelled; and this court has held the error to be harmless.

However, in my opinion, learned counsel for the State miss the whole point of the exception presented by the plaintiff in error in this case. In this question is presented much more than the mere admissibility of testimony, and the consequent ruling that error in the rejection of testimony might generally be cured, provided that the party offering it had the benefit of it in the trial. The objection of the solicitor-general went to the point that the testimony was immaterial and irrelevant, not generally, but in the particular case then being tried, unless and until the defendant denied the confession attributed to him by the State’s witnesses. And the error of the court in not sustaining the objection was not due so much to the exclusion of the testimony as to depriving the defendant’s counsel of the right of proceeding in his own order to represent as he thought best in the conduct of his client’s case, and also in virtually compelling the defendant to make a statement at the instance of the State’s counsel.- There are few constitutional rights which are esteemed to be of greater value than the right of counsel. It is a right guaranteed by the constitution of the United States as well as by that of our own State. I shall not attempt to comment upon the benefits of counsel nor the válue of the right, because the views of this court upon this subject were long ago expressed in a manner which I can not approach, by Judge Nisbet in the Berry case, 10 Ga. 511. With this right the court should never interfere, nor should the court ever hamper its exercise except to prevent a breach of orderly procedure or a violation of law. Even if the court thinks that the client’s lawyer is pursuing an injudicious course or failing to avail himself of his client’s best defense, it is not a question for the court; for the point is similar to that involved in determining who is leading counsel, as to which this court has held that it. is not for the judge to determine from his knowledge nor from the prominence of parties who is leading counsel, but that fact is to be determined solely by the client and his honest choice as to which of several counsel he mainly relies upon. So in-this case it was not a question for the court, after the statement of counsel that to proceed first with a denial of the confession, or to introduce testimony in a different order from that which he had mapped out would weaken the defense by disturbing the line of defense already determined by him, to vary that order by acceding to the suggestion and demand of the solicitor-general for a different order of procedure; and certainly it was improper and I think injurious in this case for the court in the presence of the jury to accede to the demand of the solicitor-general that the defendant must make a statement. It may be said that the language can not be so construed. But the objection of the solicitor-general to the evidence offered by the defendant, which objection the court sustained, was that the offered evidence was inadmissible because the defendant had not denied the alleged confession. The jury, having learned to whom the confession was made and having already ascertained from the evidence adduced by the State that all of the persons alleged to have been present had already testified substantially to the same effect as to the confession, knew as sensible men that there was no one to deny the confession except the defendant alone; and they knew as well as defendant’s counsel that that which happened would happen: that the defendant would have to make a statement and be compelled to deny the confession as the price to be paid to enable him to have the testimony of-,his witnesses as to other points.

In my opinion the ruling of the court as to this point conflicts altogether with the spirit of several of the decisions of this court, in which it is held that it is error for State’s counsel even to refer to the fact that the defendant has not made a statement. The law gives the defendant the same right not to make a statement as to make one, with freedom from criticism provided he chooses the former rather than the latter course. In the case at bar the solicitor-general argued to the court, in the presence of the jurjq facts from which no other inference could be drawn than that it was the duty of the defendant to deny the confession attributed to him, and the jury knew that he could only deny by a statement; and this despite the fact that a defendant is not required to deny anything either by statement or by testimony in order to be permitted to introduce testimony, nor is he required to introduce testimony at all. The question here involved is not a mere question of practice and procedure, but it is a question of the right of a defendant to control,- through his counsel, the conduct of his own case; and these questions were not involved or considered in any of the cases in which it has been ruled that the rejection of admissible testimony may generally be cured by its subsequent admission. In the trial of a capital felony the conduct of the case and the order in which it shall be presented to the court and jury, and whether or not the defendant shall make a statement, are questions of delicacy and gravity which go to the very heart of the issue. Frequently an announcement of ready is made with knowledge on the part of counsel that one of his client’s witnesses is not then present in the court-house but with the assurance that he will be present at the stage of the case in which his testimony will be in order. The result of a trial as the outcome of a battle frequently depends upon the development of the evidence in such logical sequence as to carry conviction, where, were the evidence circumstantial and if the evidence was thrown in disjointed fragments helter-skelter before the jury, they would fail to catch the significance of many of the fragments and confusion, and loss of the case would be the inevitable result. As order is God’s first law, so is order the underlying foundation, the all-pervading element, of human law and legal procedure.

I can not say that the rulings upon the point now being considered, and which I conceive to relate principally, if not altogether, to the right of a fair trial with benefit of counsel, unhampered by aggravating restrictions and free from interference or dictation from the counsel of the opposite party, fall within the decisions which relate merely and are confined entirely to the question of the admission of evidence. The solicitor-general had no doubt entertained this view, and no doubt the learned “trial judge sustained the objection upon the idea that his ruling was in accordance with the law. This is apparent from the fact that the solicitor-general in making the objection conceded that the evidence would be admissible at a later stage of the trial; and the court seemingly paid no attention to the statement made by counsel in his place as attorney for the defendant, that he would be greatly hampered and his client injured by being prevented from presenting his case in the manner and order in which he had prepared and mapped it out. The ruling of the court upon the objection of the solicitor-general in this case must be adjusted as every other open ruling of every other court upon the same question ; that is to say, the ruling must be adjusted to and coextensive with the objection made. Thus State’s counsel having objected, not that the testimony was under all circumstances irrelevant and immaterial, but that it was irrelevant and immaterial in advance' of a denial of the confession, though it would be admissible thereafter, the sustaining of the objection by the court was a ruling' by the court, not that the evidence was irrelevant and immaterial and inadmissible generally, but that in the particular case and under the particular facts of that case it could only become admissible provided the defendant denied the confession. This forced the defendant to deny the confession, whether his denial was the truth or not; for he was told by the court that otherwise he would not be permitted to attempt to prove his defense of alibi. I think that the solicitor-general properly concedes that the rejection of the evidence was error. This then 'is settled. I can not agree that any of the decisions heretofore rendered by this court intimate that this error can be obviated and rendered harmless where it appears that there is involved in the rejection of the evidence the right of a party’s counsel to conduct his client’s case in his own way, and not according to the dictation either of opposing counsel or of the court.

Altogether aside from the guilt or innocence of the present plaintiff in error, there is involved an abridgment of one of the very essential elements of a legal trial,— the benefit of counsel. Likewise this ruling will restrict the privilege now allowed by law to defendants in criminal cases of deciding when they will or will not make the statement, which is now accorded as a matter of privilege and justice, by establishing the principle that in certain instances the judge can require a statement to be made as a prerequisite to permitting a defendant to introduce testimony the relevancy and need of which can not be gainsaid.

2. The court erred in refusing to allow the defendant to make a second statement. I have clearly in mind the numerous rulings of this court to the effect that permission to make a second statement is a matter within the discretion of the trial judge. The fact that most matters of procedure must of necessity be left to the discretion of the trial court does not preclude the thought that that discretion may in some instances be improperly or unwisely exercised, and that also the discretion may be misused, which means the,same thing as abused in a legal sense; and in this case I think (speaking juridically) that the learned trial judge misused and therefore abused the discretion vested in him. Without considering the merits of the assignment of error relating to the introduction of evidence in rebuttal of the defendant’s statement, or at least admitted because it was held to be in rebuttal, the court permitted the witness Lewis to testify as to statements alleged to have been made by the defendant, confessing his presence at what was called the Cascade wreck in Fulton county, to which no reference had been made either in the evidence in chief on behalf of the State or in the statement or testimony in behalf of the defendant; but declined to allow the defendant to make a second statement in explanation of and restricted to the incriminatory testimony introduced for the first time after the defendant had made his statement. Viewing the record as a whole, I think that the exception alleging that this was an abuse of discretion and harmful to the defendant is well sustained. The discretion of a trial judge may be well exercised when the defendant, in requesting the privilege of a second statement, proposes to enlighten the jury as to a matter which he has had full opportunity to have presented in his first statement, or where in the request to be allowed to make a second statement he does not disclose to the court what he intends to state, so as to enable the court to determine whether a ground for the exercise of his discretion in favoT of the defendant might exist; but when, as in the present instance, the court is apprised of the scope and extent of the privilege asked in the request for a second statement, and it plainly appears that through no fault of the accused new matter which is immaterial has been introduced by the State, and especially when such new matter is not in rebuttal of anything presented in behalf of the defendant,- it is in my opinion an abuse of discretion for a trial judge to refuse to permit the defendant to give his version of the new and unexpected testimony against him, for without it he has not had the privilege of a statement; or to state it perhaps more accurately, he has been deprived, through no fault of his own, of a part of his right to make a statement.

I think that there is -merit in some of the other exceptions contained in the bill of exceptions; but as they do not tend to establish any new principles, and the error, if any, consists in the misapplication of the trial court of abstract principles in themselves correct, and are recognized throughout this country, and as this case, by the judgment of the majority, will never be tried again, an expression of my views could serve no useful purpose.,