Walker v. State ( 1959 )

Wyatt, Presiding Justice.

1. In so- far as the general grounds are concerned, it is contended, “that the State’s evidence as to the cause of death is equally consistent with death by drowning as death by gunshot wounds, and since the indictment alleges death by shooting, with .a pistol, then the State’s evidence must prove death by gunshot wounds which the State’s evidence did not prove beyond a reasonable doubt in this case. Therefore the court erred in not granting a new trial on the general grounds of his motion for new trial.” The doctor who performed an autopsy on the body of the deceased testified: “The cause of the death, in my opinion, was the gunshot wound in the left temple.” He then explained in detail why, in his opinion, the cause of death was not drowning. In fact we find mothing in the brief of evidence to indicate that the cause of death was drowning. Since the evidence otherwise was amply sufficient to authorize the verdict, it follows there is no merit in the general grounds.

2. The first special ground complains because, over timely objections, an alleged written confession made by the defendant on trial, and by Marvin Walker, who was jointly indicted with the defendant, was allowed to go to the jury room to be considered by the jury during their deliberations. In Shedden v. Stiles, 121 Ga. 637(4) (49 S. E. 719), the question presented was whether or not it was error to allow interrogatories to go to the jury room. It was there said: “Interrogatories, though read in evidence, should not be delivered to the jury. Where the court, over the objection of the party against whom the-verdict was rendered, sent to the jury, after they had retired to deliberate as to their verdict, interrogatories which had been read in evidence and which were calculated to influence the jury in favor of the prevailing party, a new trial should have been granted.” It was further stated in Shedden v. Stiles (p. 640): “The reason given for not allowing them to be delivered to the jury is, that the testimony which they contain, if read and reread by the jury, would have an unfair advantage over oral testimony of the other side, by speaking to the jury more than once.” This is a full-bench decision.

In Strickland v. State, 167 Ga. 452 (6) (145 S. E. 879), also a full-bench decision, this court had under consideration whether or not it was error, over timely objection, to permit a dying declaration to go to the jury room. There this court said: “A dying declaration reduced to writing and signed by the deceased, and introduced in evidence by this State, should not have been sent by the court to the jury for their consideration while deliberating on the verdict which they should render, over the objection of the defendant; and permitting such declaration to go to the jury over the objection of the defendant requires the grant of a new trial.”

Royals v. State, 208 Ga. 78 (65 S. E. 2d 158), is a case in which the identical question here presented was decided. There, with three dissents, this court held that the confession of the defendant and his coconspirator, the exact situation in the instant case, should not have been allowed to go to the jury room, and' that to do so was reversible error. The majority opinion in the Royals case is based upon the full-bench opinions above cited. We are bound by the full-bench decisions of this court.

The facts contained in the alleged confession in the instant case had been testified to verbally by three officers. It was reversible error to allow the confession to go to the jury room.

3. The second special ground complains because two pistols were admitted in evidence over objection. Attached to the pistols was a written tag containing statements as to where the pistol came from and had the language: “Used By: Cecil Walker. Stole By: Marvin Walker. Charge Invest, c/w Homicide.” It is argued that these tags were prejudicial and not admissible. The' record discloses, however, that the only objection made at the time the pistols were offered was the following: “We object to the pistols on State’s exhibits 25 and 26 on the grounds that they have not been shown to have any connection with the crime committed in this case; they are immaterial and prejudicial to the defendant.” There was no objection except as to the introduction of the pistols themselves. There was no objection to the tags. The pistols had been sufficiently identified to make them admissible in evidence. Therefore, no error is shown in this assignment of error. Since the case is to be tried again, we should say that, had the tags been properly objected to, they would not have been admissible in evidence.

4. The third special ground complains about the admission in evidence of a lengthy excerpt from the testimony of Dr. Herman Jones. This witness had qualified as an expert, and was therefore competent to give his opinions about the matters contained in his testimony. There is no merit in this assignment of error.

5. Prior to the trial of this case, the plaintiff in error filed a petition in the superior court, in which he prayed that he have access to certain documents, articles, and statements in the possession of the solicitor-general. The trial judge, upon a hearing, allowed the petitioner to have access to certain of the items set out in the petition and denied him access to others. Insofar as the judgment denied the petitioner access to the items in question, he excepts. The Constitution of Georgia as set out in Code (Ann.) § 2-105 provides what information or rights the defendant in criminal cases has under the circumstances here under consideration. That part of the Constitution provides as follows: “Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel; shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded; shall have compulsory process to obtain the testimony of his own witnesses; shall be confronted with the witnesses testifying against him; and shall have a public and speedy trial by an impartial jury.”

There is no law in Georgia that gives to the defendant in a criminal case the right to inspect the file of the solicitor-general before he is put on trial. The plaintiff in error relies in part on the provisions of Code §§ 38-1201 and 38-801. These Code sections deal with the right of either party in any case to have certain matter, upon proper notice, produced at the trial. They have no application to the question here under consideration. The judgment denying the plaintiff in error access to the evidence contained in the file of the solicitor-general was not error.

6. For the reasons stated in division 2 of this opinion, the judgment denying the plaintiff in error a new trial was error and must be reversed.

Judgment reversed.

All the Justices concur, except Duck-worth, C. J., Candler and Hawkins, JJ., who dissent.