Felder v. State , 191 Ga. 600 ( 1941 )

1. The Code of Georgia, § 38-415, provides that the defendant in a criminal case shall have the right to make to the court and jury such statement as he may deem proper in his defense, and that the jury may believe it in preference to sworn testimony.

(a) Where in the trial of a murder case it appeared from the evidence that the defendant killed the deceased on finding him in bed with a woman who had lived with the defendant, and the defendant stated to the jury that the woman was his wife, it was within the province of the jury to believe such statement, however much it may have been contradicted by the sworn testimony.

(b) Accordingly, in such case it was the right of the defendant's attorney to argue the case upon the theory that the woman was the defendant's wife, and he could do so upon the theory of common law marriage where the defendant did not state the method by which the claimed marriage was consummated.

(c) Under the foregoing rulings as applied to the instant case, the court erred in restraining such argument of the defendant's attorney, and in stating to him in the presence of the jury that he was arguing something that was not in the case; and it was consequent error to refuse to declare a mistrial.

2. Except as related to the matters referred to above, there was no merit in the motion for new trial.

No. 13486. FEBRUARY 13, 1941. Johnnie Felder was convicted of the offense of murder in the alleged killing of Norman Sapp. The jury made no recommendation, and the defendant was sentenced to death by electrocution. His motion for a new trial was overruled, and he excepted. The indictment alleged that the defendant did kill and murder Norman Sapp by cutting, stabbing, and wounding him with a knife and with "other blunt instruments," and by burning him with fire. According to the evidence for the State, a woman by the name of Marie Prey for some time had lived with the defendant in his home "in the quarters." Norman Sapp lived in a shanty near by. On the night in question the defendant discovered that the woman had gone to the home of Sapp and was in bed with him. She was sworn as a witness for the State, and testified that the defendant entered the shanty, stabbed the deceased twice with a knife, struck him with a piece of iron, and then set fire to the house. The house was destroyed, and the following morning the dead body of Norman Sapp was found in its ashes. The woman Marie further testified that she had a living husband, and that the defendant had a living wife; that she had merely been living with the defendant, cooking and washing for him; that he had never married her, but that he called her "his wife." Two other witnesses for the State testified that they heard the defendant state that he was not married to Marie Prey; that he was married, but that his wife had left him.

The defendant's statement to the jury was as follows: "On Saturday evening me and this boy leave together and went to Perry's place, and that night five after twelve he was closing up, and we leave, and I told him to come on and let's go home, and he said no, he was going to the other cafe down the road, and he went to the other cafe. Norman Sapp went to the other cafe, and I caught a ride with Mr. Mack, and went to my brother-in-law's house and my sister and asked if Marie was there, and he said no, and he said, ``Where you been, home?' and I said, ``No, I been to the jook and am going home;' and I went to the house and chopped up some splinters to build a fire, but I didn't build the fire, and I went on to bed, and pretty quick I heard a car coming up in the quarters, and I thought it was Marie coming home; she was staying with me, living with me, my wife; and the car went to the quarters, and I went to see if she come in the car, and she did come in the car, and the car went on out, and I went to this house and listened and found out that she was there, and I called her and she answered, and I said ``Come and let's go home,' and she said no, and I stood up there ten or fifteen minutes, and she didn't come, and I pushed the door open and went in, and when I did this boy made a rake off the bed after me with his hand in his hippocket, and I got my knife and told him to get back, and as he come on to me I popped him with the knife, and he came back at me again, and I hit him again, and this iron was side of the door, and I struck him with the iron and knocked him down, and she run back behind the bed with a torch in her hand, and she dropped it, and something she turned over there it caught afire, and I run out and leaves after I knock him down, and went on to my house, and we both went to bed. We had been living together off and on for about two years."

The motion for new trial contained the general grounds, and four special grounds added by amendment and numbered 4 to 7 respectively. In ground 4 the movant complained as follows: Honorable W. F. Mills, attorney for the defendant, in his concluding argument to the jury, used substantially the following language: "Gentlemen, this defendant claimed this woman Marie Prey as his wife, that she lived with him as his wife for two years or more. Now there is in Georgia what is known as common law marriage, that is where a woman and man live together as man and wife, and each hold themselves out to the public as man and wife; this would make good marriage even without a formal license or ceremony performed by the judge or by a minister of the gospel; and when he went out that night to find this woman he claimed his wife and found her in the house of the deceased, Norman Sapp, and called her to come on and go home with him, she refused to come out, and the defendant entered the house and found this woman in the bed with the deceased, Norman Sapp, which fact created in the defendant a sudden heat of passion that was irresistible, and the deceased made an assault on him; the defendant cut the deceased with his knife and also struck him with small piece of iron from which blow the deceased died." The solicitor-general interposed an objection to this "line of argument," and the objection was sustained by the judge. Whereupon the following colloquy occurred: Mr. Mills: "I would like for the court to permit the stenographer to take down your remarks; the court is arguing the case to the jury." The court: "I will let you pay five dollars or serve three days for that statement. The court is not arguing the case. I am trying to explain to you that you are arguing something to the jury that is not in the case." Mr. Mills: "I move for the court to declare a mistrial at this time, because what the court has said and told the jury will tend to prejudice the jury against this defendant; and at this time I move for a mistrial." The court: "Motion denied; proceed with your argument, but don't argue marriage; that is not in the evidence." In this ground the movant further averred that the court erred in sustaining the objection of the solicitor-general, for the reason that such argument was authorized by the evidence and the defendant's statement, and was a legitimate explanation of the defendant's conduct, illustrating that he was acting under an "irresistible passion" in taking the life of the deceased.

In ground 5 the movant complained of the failure of the court to charge stated principles of law on voluntary manslaughter. In ground 6 it was alleged that the court erred in charging the jury as follows: "Due to the fact that something was said about marriage, about the rights of husbands, I charge you no one in this State can enter into any sort of legal marriage if either of the parties have a living husband or wife, undivorced. In other words, a man might be single and the woman have a living husband, or vice versa; there could be no legal marriage so long as that condition existed. I charge you further, that a man, if he lived with a woman in unlawful cohabitation, acquires no right to her or her person or her company, and would have no right to seek to protect her or control her, based on that sort of cohabitation; but if a man has a wife and is lawfully married to her, he has a right to protect her and to protect her from other people." It was contended that this charge was erroneous, for the following reasons: (a) It tended to express an opinion on the part of the court that the defendant was neither married to the woman Marie Prey, nor had any right to become married to her; (b) the court had previously stated in the presence of the jury that no question of marriage was in the case, and that such charge was in conflict with that ruling and tended to confuse the jury. In ground 7 the movant complained that in ruling upon the defendant's motion for mistrial, and in making the following statement in reference thereto: "Motion denied; proceed with your argument, but don't argue marriage; that is not in the evidence," the judge expressed an opinion that no evidence of marriage had been introduced, and invaded the province of the jury to determine what had or had not been proved either by the sworn testimony or the statement of the defendant. In ground 4 of the motion for a new trial the movant complained of the refusal of the judge to declare a mistrial because of a ruling restricting the argument of the defendant's counsel and of remarks made by the judge in the presence of the jury, including the statement to the defendant's attorney, "You are arguing something to the jury that is not in the case." We are of the opinion that this ground of the motion for a new trial was meritorious, and that a new trial should have been granted thereon. It appeared from the evidence that on the night of the homicide the defendant Felder went from his home to the "shanty" occupied by Norman Sapp, looking for the woman Marie Prey, and, on finding her in bed with Sapp, assaulted him with a knife and a "piece of iron," and in one or more of the ways alleged in the indictment inflicted wounds which resulted in his death. According to the evidence, the defendant and the woman Marie were not united in marriage to each other, and could not have become married by any method, in that it appeared from the testimony that each of them had a living spouse in the person of another at the time they began living together and at the time of the homicide. The defendant stated, however, "she was staying with me, living with me, my wife." The real question for determination is whether this statement, without more, was sufficient to authorize the defendant's attorney to argue the case to the jury on the theory that the woman was the common-law wife of the defendant. In the brief filed by the attorney-general it is suggested that this ground of the motion for new trial is incomplete, because it does not set forth what ground of objection was urged by the solicitor-general to such "line of argument." There is no merit in this suggestion, for the reason that the question is not what objection was made by the solicitor-general, but is whether the argument was legitimate. Compare Morgan County Bank v. Poullain, 157 Ga. 423 (4) (121 S.E. 813); Hogg v. Louisville Nashville Railroad Co.,33 Ga. App. 773 (2), 774 (127 S.E. 830); Clark v. Prince,38 Ga. App. 412 (2) (144 S.E. 40).

Under the law of this State, the defendant in a criminal case shall have the right to make "to the court and jury such statement in the case as he may deem proper in his defense," and the jury may believe such statement "in preference to the sworn testimony." Code, § 38-415. "He is unrestricted by the rules of evidence, and may state any fact as to the condition of his own consciousness, or as to what he saw, heard or believed at the time of the homicide. Coxwell v. The State, 66 Ga. 309."Vaughn v. State, 88 Ga. 731 (2), 735 (16 S.E. 64);Garland v. State, 124 Ga. 832 (2), 834 (53 S.E. 314);Birdsong v. State, 55 Ga. App. 730 (191 S.E. 277);Williford v. State, 56 Ga. App. 40 (3), 44 (192 S.E. 93). In the instant case, the foregoing statement of the defendant could have been construed by the jury as a declaration that the woman Marie was his wife, and as such it could have been believed by them in preference to all of the sworn testimony. Hence it would have authorized a finding that the relation of husband and wife did exist between them. The statement may have been an absolute falsehood, but that was a matter to be determined by the jury. Since the defendant did not state how the woman became his wife, whether by formal ceremony or by common-law marriage, it was not improper for his attorney to argue the case upon the theory of marriage by either method; and therefore the court erred in stating to the attorney, "You are arguing something to the jury that is not in the case," and in restricting the argument accordingly. The question whether the woman was the wife of the defendant as claimed by him was a material issue, because if such relationship did exist, the verdict of the jury could on legal principles have been different. Mize v. State,135 Ga. 291 (4) (69 S.E. 173); Jackson v. State, 135 Ga. 684 (2) (70 S.E. 245); Richardson v. State, 189 Ga. 448 (5 S.E.2d 891).

The defendant's motion for mistrial was timely, and while perhaps the judge might have corrected the error in limine by withdrawing the statement and giving proper instructions regarding the incident, yet where he failed to do so and unqualifiedly denied the motion, the error was such as to require a new trial.

2. The court did not err in failing to instruct the jury on the law relating to voluntary manslaughter, the issue as to this offense having been presented only by the defendant's statement and there being no request to charge. Felder v. State,149 Ga. 538 (1 a) (101 S.E. 179); Davis v. State, 178 Ga. 203 (172 S.E. 559).

The charge relating to marriage and contrasting that relation with that of unlawful cohabitation was not erroneous for any reason assigned. The fact that the judge had erroneously stated to counsel that there was no question of marriage in the case did not render it erroneous for him to charge the jury later in reference to such relationship.

In view of what has been ruled in the first division, it is unnecessary to deal with the last ground of the motion for new trial, referring to the same matter. For the reason stated in division 1, the court erred in overruling the motion for new trial.

Judgment reversed. All the Justices concur.