Reece v. State , 208 Ga. 165 ( 1951 )

Atkinson, Presiding Justice.

(After stating the foregoing facts.) As to whether females are qualified to serve on' traverse juries, aid in answering this question would be found in article 6, section 16, paragraph 2 of the Constitution of 1945 (Code, Ann., § 2-5102); Code §§ 59-106, 59-112, 79-207, 102-102; also Pollard v. State, 148 Ga. 447 (96 S. E. 997); Powers v. State, 172 Ga. 1 (4) (157 S. E. 195); Cady v. State, 198 Ga. 99, 102 (b) (31 S. E. 2d, 38). But a determination of this question will not here be made. Even though it be conceded that a challenge to the array would be a proper mode of attack, and that the judge might have erred in his ruling, yet, under the agreed statement of facts, there was no injury to the defendant. It appears that, of the 100 jurors drawn, four were females, yet two of them did not appear and the other two were excused from jury service by the court. No female appeared upon the panel of 48 or more which was put upon the accused, nor was any question raised in the challenge to the array, under Code § 59-803, going to show that those put upon him were not properly impaneled, or ought not to be put upón him. Even though there might have been names of ineligible jurors in the box and drawn for jury service, yet, where the panel put upon the accused was properly impaneled, the accused suffered no injury. He had put upon him 48 or more competent jurors, as required under Code § 59-801. Where a plaintiff in error brings a case to this court, the burden is upon him to show error which is injurious to his cause. Brown v. City of Atlanta, 66 Ga. 72; Hall v. State, 202 Ga. 619 (2), (44 S. E. 2d, 234).

. The case of Bridges v. State, 103 Ga. 21 (2) (29 S. E. 859), is distinguishable from the instant case. There the panel put upon the prisoner had not been drawn, selected, or summoned in the manner provided by law.

Headnotes 2, 3, and 4 require no elaboration.

Exception is taken to the following charge: “Gentlemen, to impeach a witness is to show to the satisfaction of the jury that such witness is unworthy of belief. A witness may be impeached by disproving the facts testified to by him by proof 'of contradictory statements previously made by him as to matters relevant to his testimony and to the case, or by evidence as to his general bad character. He may be sustained by proof of general good character, the effect of the evidence to be determined by the jury.”

This charge contains an erroneous statement of the law. Where a witness is sought to be impeached by contradictory statements or by proof of general bad character, he may be sustained by proof of general good character. Code, §§ 38-1803, 38-1804. But where a witness is sought to be impeached only under Code § 38-1802, by disproving facts testified to by him, his testimony cannot be sustained by proof of general good character. Miller v. Western & Atlantic R. Co., 93 Ga. 480 (1), (21 S. E. 52); Bell v. State, 100 Ga. 78 (1), (27 S. E. 669); Surles v. State, 148 Ga. 537 (6), (97 S. E. 538).

In the instant case, the State introduced two eyewitnesses to the homicide, and other witnesses for the State whose testimony as to conditions at the scene of the homicide could be taken as contradictory to facts testified to by the eyewitnesses. The accused introduced no 'evidence, but made a statement to the jury. There was no evidence by the State seeking to establish the general good character of either eyewitness. Though the charge was erroneous in so far as it stated that a witness sought to be impeached by disproving facts testified to by him may be sustained by proof of general good character, yet we cannot see how the accused was injured thereby. In effect the court charged that, if any evidence of the eyewitnesses for the State had been disproved, they could be sustained by proof of general good character. The court having so charged, the jury might well have taken the position that, the testimony of the eyewitnesses having been disproved, the absence of evidence as to their general good character discredited their testimony. Accordingly, this portion of the charge, though a misstatement of the law, was favorable to the accused. See, in this connection, Geer v. State, 184 Ga. 805 (2), (193 S. E. 776), and citations; Jones v. State, 193 Ga. 449 (1) (18 S. E. 2d, 844), and citations.

Exception is taken to the following charge: “Now, gentlemen, I charge you, you are made by law the sole and exclusive judges as to the credibility of the witnesses that have testified in this case, and in passing upon their credibility you will take into consideration all the facts and circumstances of the case, the witnesses’ manner of testifying, their interest or want of interest, prejudice or bias, if any exists, their means and opportunity of knowing the facts to which they testified, the reasonableness or unreasonableness of their testimony, also the witnesses’ personal credibility, in so far as the same may legitimately appear upon the trial of this case.”

This charge is not subject to the criticism that it is confusing, argumentative, that it limits its consideration to those things enumerated, that it minimizes the effect of the defendant’s statement, or by the phrase, “you mil take into consideration.” See, in this connection, Daniel v. State, 61 Ga. App. 663, 664 (2), (7 S. E. 2d, 204).

These headnotes require no elaboration.

The testimony of the two eyewitnesses makes a case of unprovoked murder, and the jury verdict was amply authorized.

Judgment affirmed.

All the Justices concur, except Head, J., who dissents.