Stanford v. State , 153 Ga. 219 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

1. The defendant complains that the court erred in permitting Mrs. Emma Meddows to testify, over his objection that this evidence was a mere opinion of the witness and irrelevant, as follows: “I just knew that Stanford got wrought up about it,” referring to the foreclosure of a lien by the deceased against the defendant. This evidence was properly admitted for the purpose of showing motive. Boone v. State, 145 Ga. 37 (88 S. E. 558). It was not subject to the objection that it was a mere opinion or conclusion of the witness. That the defendant was wrought up was a fact and not a conclusion. Leary v. Leary, 18 Ga. 696; Travelers Ins. Co. v. Sheppard, 85 Ga. 752 (12 S. E. 18); Roberts v. State, 123 Ga. 146 (6), 160 (51 S. E. 374); Vincent v. State, post, 278 (112 S. E. 120.)

2. The defendant saj's that the court erred in permitting H. W. Johnson, over his objection, to testify as follows: “No, I did not hunt her up. She sent for me. That gentleman came after me and said she wanted to speak to me.” The objections urged to this evidence were, (1) that it was hearsay, (2) that it was calculated to prejudice the jury against the defendant, and (3) that it was calculated to mislead the jury. The circumstances under which this evidence was given are not narrated in the ground of the motion for a new trial complaining of its admission; and for this reason this court is unable to say whether the court below committed any error in letting this evidence go to the jury. This court is not informed to what person this testimony refers. It can not be understood without an examination of the brief of evidence; and for this reason it presents no question for decision. Sims v. Sims, 131 Ga. 262 (62 S. E. 192); Head v. State, 144 Ga. 383 (87 S. E. 273). Sometimes hearsay evidence is original evidence. Civil Code, § 5763.

3. The ruling touching the competency of jurors to serve in this case is not likely to occur on another trial; and for this reason it does not require consideration. The same is true of the remarks of the solicitor-general, complained of in the seventh ground. As this officer withdrew the language complained of, we feel sure he will Temember not to repeat it.

4. The defendant assigns error upon the following instruction to the jury: “ The reasonable doubt which the law recognizes and gives the defendant the benefit of, where it exists, is not a vague, indefinite, or capricious doubt, but is such a doubt as arises from the evidence or want of evidence, and causes your minds to be wavering, halting, unsettled, undecided and refuse to reach a conclusion that is satisfactory to you.” The errors assigned on this charge are, (a) that the phrase, “ where it exists,” amounts to an expression of opinion by the court to the effect that there was no doubt in the case, and (&) because the same confused and misled the jury. We do not think there was any merit in these objections to this instruction.

5. The defendant complains, in the ninth ground of his motion for a new trial, that the court failed to give in charge to the jury section 1009 of the Penal Code, which defines the different kinds of evidence therein mentioned. In the absence of a timely request the court did not err in failing to give this section in charge to the jury.

6. In the tenth ground the defendant complains of the following charge of the court to the jury: “ The defendant in this case, as in all criminal cases, has the right to make to the court and jury such statement in the case as he may deem proper, in his own defense. That statement shall not be under oath, and-shall have just such weight and credit as the jury think proper to give it. The jury may believe the statement in preference to the sworn testimony in the case, and if they see fit to do so they may disregard it entirely.” The errors assigned are, (a) that this instruction discredits the statement of the defendant; (&) that it did not instruct the jury that the statement of the defendant was not under oath; (c) that it emphasized the fact that the statement of the defendant was not under oath; (d) that it was prejudicial, because it imposed on him the responsibility of having delivered his statement unsworn to, when he had no right to testify under oath; and '(e) that it failed to instruct the jury that they could believe his statement in part and disbelieve it in part. These objections are utterly without merit. Penal Code, § 1036.

7. ' The defendant alleges, in thé eleventh ground of his motion for new trial, that the court erred in refusing to charge the jury, when timely requested, as follows: One of the ways pointed out and fixed by'the law for the impeachment of a witness is by proof of contradictory statements made by such witness, about a matter material to the issue in question. Now if you find from the evidence that any witness has previously sworn falsely about this case, that fact alone might be sufficient to authorize you to entirely disregard his evidence. If you should find that a witness has 'previously testified falsely about a matter at issue, and you further find that such witness claims to have so testified because of fear of bodily harm to himself, then I charge that if his life was threatened, and you are to look to the evidence to see if his life was threatened and he acted under the influence of those threats, believing that his life was in peril so much as to be unable to freely give the testimony, and he did swear falsely in consequence of the threats, apprehending danger to himself or life, then, gentlemen, under these -circumstances it is a matter for you to consider whether or not.it is a sufficient excuse for you to take his testimony. I charge you, however, that mere apprehensions of future injury to himself or life would not be such duress as would excuse witness for swearing falsely.” This request does not embrace accurate statements of the law. The contradictory statements must lie “ as to matters relevant to his testimony and to the case.” Civil Code, § 5881. Furthermore, the witness must have knowingly and wilfully sworn differently on the present trial from his testimony on the former trial, before his testimony on the present trial would be unworthy of credence; and even in that event the jury could believe the witness if corroborated. If the former testimony was given under duress, and impelled by fear for his life, such testimony would not be wilful, and would not impeach his evidence given on the last trial. Williams v. State, 69 Ga. 11, 14.

8. In the twelfth ground of the motion for new trial, the defendant complains of the following charge of the court to the jury: “ Now, if you find from the evidence that any witness has previously sworn falsely about this case, that fact alone might be sufficient to 'authorize you to entirely disregard his evidence. If you find that a witness has previously testified falsely about a matter at issue, and you further find that such witness claims to have so testified because of fear of bodily harm to himself, then I charge you that you have a right to consider the explanation made by the witness as to his previous false statement; and where the explanation is satisfactory to you, the witness may be believed with or without corroborating circumstances or supporting evidence; but if the explanation is not satisfactory to j'mi, then you would be authorized to disregard his evidence entirely. I charge you, gentlemen, that you have no right to captiously disregard the sworn testimony or impute perjury to any witness, unless that witness has been impeached by some method known to the law.” The errors assigned are, (a) because said charge was calculated to mislead the jury; (5) because it was an invasion of the province of the jury, who alone could determine whether the testimony of the witness was false; (c) because it was such a summary of the evidence of the witness as amounted to an expression of an opinion on the part of the court; (d) because it was an effort on the part of the court to repeat the substance of the testimony of the impeached witness, and to submit this, with the deductions drawn therefrom by the State’s counsel, as the issue in the case; (e) because the same was prejudicial to the defendant’s right, being highly in favor of the State, and served to bolster up the impeached witness; (/) because the same had the effect of singling out the impeached witness, and laying undue weight upon his testimony; (g) because it was an expression of an opinion upon the part of the court as to what the witness had testified to; (h) because the portion of said charge, to wit, “ that you have no right to captiously disregard the sworn testimony, or impute perjury to any witness, unless that witness has been impeached by some method known to the law,” being given immediately following the charge on impeachment, had the effect of practically instructing the jury that they could not captiously disregard the testimony of the impeached witness; and (i) because the same was misleading and confusing to the jury. None of these objections are well taken. In fact this charge was more favorable to the defendant than he was entitled to.

9. In the thirteenth ground of the motion the defendant asserts that the court erred in charging the jury as follows: “ It is contended on the part of the State in this case that the three defendants, to wit, D. Stanford, J. E. Dedge, and Floyd Dedge, were present at the scene of the crime, and that all of them participated in the crime, and that they are all equally guilty. It is further contended on the part of the State, that the defendant, D. Stan-' ford, now on trial, actually fired the gun that took the life of the deceased and was the actual perpetrator of the crime, and that the other defendants named in the indictment, not now on trial, were present aiding and abetting the crime to be done.” The errors assigned on this charge are (a) that it is not a fair and impartial statement of the contentions of the. State; and (5) because it amounts to an intimation or expression of opinion on the part of the court as to the defendant’s guilt. These grounds are not well taken. As the contentions of the State are not given in this ground, this court can not say whether this charge contains a fair and impartial statement thereof or not. Certainly this charge does not contain any expression of opinion on the part of the court as to the guilt of the defendant.

10. In the fourteenth ground the defendant alleges that the court erred in charging the jury as follows: “ The defendant, D. Stanford, is jointly indicted with J. E. and Floyd Dedge. I charge you that if there was a common design and purpose existing between the persons to do an unlawful act and to take the life of the deceased, any one of such persons would be responsible for any act done by another member in pursuance of the common purpose, as well as for all consequences which would naturally or necessarily result from any act done by any member of the party in pursuance of the common, unlawful enterprise.” The error assigned on this charge is that it is an expression of opinion by the court that there had been a conspiracy between the defendants to take the life of the deceased.' This is the sole error alleged. It is without merit. The court left to the jury to determine whether there was a conspiracy between the defendants to take the life of the deceased, and expressed no opinion upon the existence of such conspiracy and common purpose.

11. In the fifteenth ground the defendant complains of the following charge to the jury: “ So you look to the evidence in this case. Was there a common intent, common purpose, existing between D. Stanford, J. E. Dedge, and Floyd Dedge to kill C. ¿T. Meddows ? Look at the evidence to see whether or not that' is true. The defendant insists that it is not true. If you believe, from the evidence, that it was a common purpose shared in by all three of them, to wit: D. Stanford, J. E. Dedge, and Floyd Dedge, to kill C. J. Meddows, that they shared in the felonious design and purpose to kill the deceased, and that D. Stanford, in pursuance of such common purpose, shot and killed C. J. Meddows, or was present, aiding and abetting the act to be done, and further find that the other defendants were present in pursuance of a common purpose and design to do so, and under such circumstances either D. Stanford shot and killed Meddows, or one of the other defendants shot and killed him, when D. Stanford was present, aiding and abetting the act to be done, then I charge you that the defendant now on trial, to wit, D. Stanford,' would be guilty and you would be authorized to so find.” The errors assigned are (a) because the'same was argumentative, and not a fair presentation of the law applicable to the case; (&) because it limited the jury to the evidence in the case, and did not allow them to consider the defendant’s statement; (c) because said charge unduly states the contentions of the State; (d) because it is an expression of opinion by the court of what had been proved; (e) because it fails to fairly and impartially state the law of conspiracy; and (/) the evidence did not authorize said charge. None of these objections are well taken. The complaint that the court limited the jury to the sworn evidence, to the exclusion of the defendant’s statement, is not well founded. The general tenor of the charge of the court on the trial of a criminal case should be shaped by the evidence alone and the law applicable thereto, adding, or at some stage of the charge incorporating, the statutory provisions touching the prisoner’s statement. Vaughn v. State, 88 Ga. 731 (4), 738 (16 S. E. 64).

12. In the sixteenth ground error is alleged on the following charge of the court: “ When a defendant sets up as a defense, an alibi, the burden is upon the defendant to establish his defense of an alibi to your satisfaction and to a reasonable certainty; but I further charge you in this connection that it is your duty to consider the evidence on the question of an alibi along with all the other evidence introduced in the case; and if all of the evidence, including the evidence introduced on the question of an alibi, considered in connection with the other evidence, or considered apart from the other evidence, creates in your minds a reasonable doubt as to the guilt of the defendant, then it is your duty to give the defendant the benefit of the doubt and acquit him.” The error assigned is that this charge placed upon the defendant a greater burden than that imposed upon him by law. When the defendant sets up an alibi as a defense, the burden of proof is on him to establish this defense, not beyond a reasonable doubt, but to the reasonable satisfaction of the jury. Harrison v. State, 83 Ga. 129 (9 S. E. 542); Miles v. State, 93 Ga. 120 (19 S. E. 805); Henderson v. State, 120 Ga. 504, 506 (48 S. E. 167); Raysor v. State, 132 Ga. 237, 239 (63 S. E. 786); Johnson v. State, 146 Ga. 190 (91 S. E. 42). This instruction put upon the.defendant the burden of establishing this defense to a reasonable certainty, and was tantamount to requiring him to prove it beyond a reasonable doubt. It is erroneous for the court to instruct the jury that the burden is on the defendant to establish this defense by a preponderance of the evidence. It was held that “less than a preponderance might be sufficient,” and that such an instruction put a greater burden on the accused than the law imposes. Bone v. State, 102 Ga. 387, 392 (30 S. E. 845). For this reason a new trial must be granted. Dedge v. State, ante, 176 (111 S. E. 547).

13. In the seventeenth ground the defendant alleges that (he court erred in instructing the jury as follows: “ Gentlemen of the jury, in charging you' this paragraph, I used the word ‘ not ’ when I should have said ‘ You would be authorized/ Now I charge you that if you find this contention on the part of the State to be true, to a moral and reasonable certainty and beyond a reasonable doubt, then you would be authorized to convict the defendant now on trial, to wit, D. Stanford. In charging that, I used the word ‘ not/ and I should not have used that. It should have been, ‘You would be authorized/ when I said ‘you would not.’ That is all.” The errors alleged are (a) that the court did not read to the jury the paragraph in his original charge therein referred to, thus leaving the jury without knowledge as to what paragraph he referred to; (&) that it is misleading and confusing; (c) that it amounted to a direction of a verdict against the defendant; (d) that it was prejudicial to the rights of the defendant. What happened was this: the trial judge reduced his charge to writing and read it to the jury. In reading the paragraph which is set out in this ground, he used the word “not,” when it should not have been used. He then reread this paragraph with the omission of this word. We do not think that the jury could have been misled by this procedure. The other objections to this instruction are without merit. For these reasons it is not subject to the attacks made thereon in this ground of the motion for new trial.

14. In the eighteenth ground the defendant says that the court erred in charging the jury, immediately after charging section 42 of Park’s Penal Code, upon the subject of principals in the first, and second degrees, the following: “ So, gentlemen of the jury. I charge you that if you find from the evidence in this case to a moral and reasonable certainty and beyond a reasonable doubt, under the rules of law given you in charge, that one of these defendants jointly indicted was the actual perpetrator of the crime, and that the other defendants were present, aiding and abetting the crime to be done, as defined to you in the law given you in charge, then they would all be equally guilty, and it would be your duty to convict the defendant now on trial. It is contended on the part of the State- in this case that the three defendants, to wit, D. Stanford, J. E. Declge, and Floyd Hedge, were present at the scene of the crime, and that all of them participated in the crime, and that they are all equally guilty. It is further contended on the part of the State that the defendant B. Sanford, now on trial, actually fired the gun that took the life of the deceased, and was the actual perpetrator of the crime, and that the other defendants named in the indictment, not now on trial, were present, aiding and abetting the crime to be done. I charge you that if you find this contention on the part of the State to be true, to a moral and reasonable certainty and beyond reasonable doubt, then you would not be authorized to convict the defendant now on trial, to wit,- B. Stanford.” The errors assigned on this charge are, (a) because it instructed the jury that if either one of the defendants fired the gun, or if the defendant fired the gun, they would be authorized to convict 'the defendant; (b) because the same is not adjusted to the issues in the case, and is not authorized by the evidence in the case; (c) because it is an incorrect statement of the law;- (d) because it is prejudicial to the rights of the defendant; (g) because it confused the law of principals in the first and second degree with the law of conspiracy; and (/) because it states inconsistent contentions on the part of the State. None of these grounds are well taken. As a new trial is granted in this case, we express no opinion upon the question whether the evidence was sufficient to justify this charge on conspiracy.

15. In the nineteenth ground the defendant contends that he is entitled to a new trial because of the newly discovered evidence therein set forth. As a new trial is granted in this case, the defendant will have an opportunity to present this evidence on the next trial of his case; and therefore it becomes unnecessary to consider this ground.

16. In the twentieth ground the defendant complains of bias and prejudice of one of the jurors who found him guilty. It is unnecessary to pass upon this ground of his motion for new trial, as the judgment of the court below refusing a new trial will be reversed; and this error, if any, will not be repeated on the next trial.

Judgment reversed.

All the Justices concur, except Fish, O. J., and Beck, P. -J., dissenting.