Glenn v. State , 205 Ga. 32 ( 1949 )

It was error to overrule the special ground of the motion for new trial, assigning error on the failure of the court to grant the motion for a mistrial.

No. 16457. FEBRUARY 15, 1949. REHEARING DENIED MARCH 16, 1949. Albert Glenn was indicted for the murder of Solomon K. Haddad, and was found guilty without a recommendation of mercy. His motion for new trial, as amended, was overruled, and the exception here is to that judgment.

Counsel for the defendant in their brief waive all issues of law raised by the general grounds of the motion for new trial, and the special grounds, except ground 2. This ground asserts that the court erred in failing to grant a mistrial on motion of the defendant on account of certain improper and prejudicial conduct of Mrs. Solomon K. Haddad, the widow of the deceased, before the jury and in the presence of the court. The alleged improper and prejudicial conduct occurred during the closing argument to the jury of the assistant solicitor-general prosecuting the case, and the motion for mistrial was made at the conclusion of the closing argument and before the verdict of the jury was rendered. The recital of facts by counsel for the defendant is in part as follows:

"After the argument of counsel and before the charge to the jury, the jury retired and the following occurred:

"Mr. Lozier [of counsel for the defendant]: Your Honor, . . when we adjourned yesterday without concluding the case, Mrs. Haddad asked Solicitor Copeland whether she should come back today and Solicitor Copeland told her yes, to come back, because it would let the jury know she was interested. Now, those are the words Mr. Copeland said and I don't believe he will deny it. Now, today when Brother Copeland started his argument he was standing in front of the jury box, and Mrs. Haddad was sitting a distance of about fifteen or twenty feet at the most from the jury box. She was within the area that is usually limited to jurors and counsel. She was sitting on the front bench right behind counsel table, there being only one bench in this area. Now, within the first five minutes after Brother Carl Copeland started his argument to the jury Mrs. Haddad started weeping. She was in court today dressed in black. She has a white handkerchief and she was weeping in an audible fashion. I could hear it sitting over at the other end of the jury box. I called Your Honor's attention to it and then you asked one of the sheriffs to go over and remove her. The sheriff went over but he did not remove her and she continued weeping. Now, right toward the conclusion of Mr. Copeland's argument to the jury, about fifteen minutes later — she had been weeping off and on during that whole fifteen-minute period — another deputy, evidently instructed by Your Honor, did go to Mrs. Haddad and did secure her removal from the courtroom. As she walked out of the courtroom a distance of about twenty-five or thirty feet from where she was sitting, she passes in close proximity to the edge of the jury box, was holding her handkerchief up to her eyes and nose, and you could hear her sniffling and sobbing from where I was sitting some distance of fifty feet away. I think this kind of thing is most prejudicial to the defendant in this case; and if any of the facts which I have recited need verification, I can put on the stand the two deputies, the first of whom attempted to secure the removal of Mrs. Haddad and the second deputy who was successful, and I can also put on the stand other witnesses in the courtroom who saw Mrs. Haddad weeping in full view of the jury. I think, in the light of the kind of prejudice which could not help but have been engendered by the jury seeing this widow dressed in black, her feeling, as much as I hate to do so, I will have to ask for a mistrial.

"The Court: Your factual statement is correct, except it was not fifteen minutes since you made your request that she went out. It was about five minutes until she went out.

"Mr. Lozier: It seemed like fifteen to me.

"The Court: The first deputy went over there and she did cease using her handkerchief, and when she used it again I requested the other deputy to ask her to step into the hall, and she did. And courtrooms, of course, are filled with human emotions. I have seen cases when lawyers were arguing to the jury, the jurors would start crying. I don't think there has been any harm done in this case. Overrule the motion."

It is contended that no effort of any kind was made by the court to eradicate the injury done to the defendant by this conduct on the part of the widow of the deceased, the court giving no instructions that the conduct was improper, and that the jury should disregard the conduct, and the court giving no rebuke to Mrs. Haddad; and that such conduct was prejudicial to the defendant for the following reasons: it was such as to arouse in the jury sympathy for the widow and revengeful feeling toward the defendant, to arouse in the jury a feeling of hatred toward the defendant, and to inject into the trial feelings and emotions from which the jury should have been free in order to calmly and dispassionately decide the issues.

No counter-showing was made by the State as to this ground of the motion for new trial. It is the right of every person accused of crime in this State to have a fair and impartial trial, free from any demonstration or disorder of a nature calculated to prejudicially affect the jurors trying his case. Patton v.State, 117 Ga. 237, 238 (43 S.E. 533). This is true whether or not the verdict in the case is supported by the evidence.Collier v. State, 115 Ga. 803 (42 S.E. 226).

Counsel for the defendant in this case have waived the exception to the overruling of the general grounds of the motion for new trial. An examination of the evidence shows that there was sufficient evidence to support the verdict of guilty. This fact would not render harmless the denial of a new trial to the defendant, if he was prejudiced by the conduct complained of, since such conduct may well have influenced the jury to inflict the death penalty. In Glover v. State, 128 Ga. 1, 7 (57 S.E. 101), approved in Barfield v. State, 179 Ga. 294 (175 S.E. 582) it was said: "There may be a state of facts where the evidence, under the law, would demand a conviction of the crime of murder, but under our law, where the punishment to be inflicted for murder is left in the discretion of the jury, under no circumstances can this court say that the evidence demanded a general verdict of guilty which must be followed by the infliction of the death penalty."

The conduct of the widow of the deceased in audibly and visibly weeping before the jury during the argument of the assistant solicitor was certainly calculated to influence them against granting mercy to the defendant, if they believed him guilty of the crime charged. Had the widow been removed immediately from the room, her display of emotion would probably not have required the grant of a mistrial. Compare Clements v.State, 123 Ga. 547 (51 S.E. 595).

In this case the statement of counsel for the defendant charges that the assistant solicitor had requested the widow, who had previously been a witness in the case, to return to the courtroom on the concluding day of the trial to "let the jury know she was interested." While we would not assume that the solicitor intended to make the type of argument which would be likely to move the widow to tears, nevertheless he did suggest that she return to the courtroom, and it was during his argument that she made her grief apparent to the jury.

In many of the cases before this court where a new trial was denied although some demonstration was made before the jury, no request for a mistrial was made by counsel for the defendant, and this court has held that, "The failure of the court to interpose of its own motion, in case of disorder by the spectators at the trial, will not generally be a sufficient reason to reverse the judgment, when no ruling in reference to the disorder was invoked from the court." Rawlins v. State, 124 Ga. 32 (7) (52 S.E. 1). See also Washington v. State, 124 Ga. 424 (10) (52 S.E. 910); Hendrix v. State, 173 Ga. 420 (2) (160 S.E. 614);Wynn v. State, 179 Ga. 874 (4) (177 S.E. 695); Cato v.State, 183 Ga. 277 (2) (188 S.E. 337).

In the present case, counsel states that he called the court's attention to the conduct of the widow of the deceased, and that the court sent a sheriff to the widow, that she did not leave the room but continued to weep, and remained in the courtroom for a period of time which he estimated to be fifteen minutes, but which the court states was five minutes, and at the end of that time she was removed from the room by a deputy. At the conclusion of the argument of the solicitor, counsel made a motion for mistrial. The motion for mistrial was appropriately made as to time.

As was stated in Douglass v. State, 152 Ga. 379 (110 S.E. 168), we think in this case that "the importance of preserving the purity of trials by jury, uninfluenced by outside demonstrations or suggestions, requires the grant of a new trial."

Judgment reversed. All the Justices concur, except Duckworth,C. J., and Candler J., who dissent.