Nobles v. State , 1906 Ga. LEXIS 807 ( 1906 )

Atkinson, J.

1. In the 1st, 2d, and 3d grounds of the amendment to the motion for new trial, complaint is made of certain rulings of the court relating to questions to be propounded to the jurors for the purpose of ascertaining whether or not they were competent. This is a misdemeanor case. The jurors had been attacked only upon the ground of having previously heard certain affidavits read and certain evidence delivered on a motion to continue. The presiding judge permitted the jurors to be asked, under' oath: “Have you, from having seen the crime committed, or from having heard any testimony delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar ?” No juror was ruled competent except such as answered that question in the negative.-* In Sullivan v. Padrosa, 122 Ga. 338, Mr. Justice Cobb, speaking for the court, says (p. 340) : “In misdemeanor and civil cases there is no statutory provision regulating the method ■ to be adopted by the court in determining the competency of the juror; but the settled rule is that either party has a right to request that the jurors be put upon their voir dire in order that their competency may be determined. When such request is made, it is the duty of the court to propound, or cause to be propounded, such questions as will test the competency of the jurors to pass upon the issues in the case. The questions to be asked in each case are to be determined by the court, and what shall be the character and number of the questions is left largely to the discretion of the judge, who must keep in mind all the time the object to be attained, that is the determination of whether the minds of the jurors are in such a condition that they can pass fairly and intelligently upon the issues to be submitted to them.” In the ease at bar, taking into consideration the grounds of attack upon the competency of the jurors and the question which the court permitted to be propounded to the jurors, it does not appear that there was any such abuse of discretion upon the part of the court as would require the reversal of the judgment.

2. After the jurors had been challenged by the defendant and pronounced competent by the court, it was proper to direct the selection of the jury to try the defendant from those jurors who had been declared competent, in the same manner as if there had been no challenge. This being true, it was not erroneous for the court to impose upon the defendant the duty first of exercising his right to strike, according to the alternating system, so as to give to the defendant the first, and the State the second, strike.

3. In the 4th and 5th grounds of the amendment, complaint is made touching the admission of certain evidence offered which tended to show improper conduct between the defendant and the person with whom it is charged he had committed the adultery, the .evidence showing that the improper conduct referred to was not committed within the county within which the defendant was being tried. The objection was that the evidence was irrelevant and immaterial. While the evidence objected to could not be the basis of a conviction in the county where the prosecution was conducted, under' the ruling in Lipham v. State, 125 Ga. 52, and authorities cited, it was nevertheless relevant and admissible for the purpose of showing the relation between the defendant and the person with whom it is alleged he had committed the offense of adultery, and it could be considered as a circumstance looking to the guilt of the accused.

4. In the 6th and 7th grounds of the amendment, complaint is made of a ruling of the court which refused to allow counsel for the accused to use, in his argument, a map which the accused had held in his hand while he was making his statement and used for the purpose of illustrating a portion of the statement. The privileges of the accused under the law allowing him to make a statement to the jury are exceedingly broad. But the right to make a statement can not be legitimately used as a vehicle to convey to the jury documentary evidence which has not been formally offered in ■evidence. If the' accused desires the full benefit of evidence of this character, he must introduce the same in evidence and take the ■consequences of offering evidence, thereby forfeiting the right to a concluding argument by his counsel. See, in this connection, Nero v. State, 126 Ga. 554.

5. Complaint is also made touching the refusal of the judge to charge the law relating to certainty of proof necessary to convict upon circumstantial evidence. The record discloses that there was direct as well as circumstantial evidence, and consequently that the conviction of the accused did not depend wholly upon circumstantial evidence. Under such circumstances it was not erroneous for the judge to refuse to give in charge to the jury the law on the subject of circumstantial evidence. See, in this connection, McElroy v. State, 125 Ga. 37; Smith v. State, Id. 296.

6. Other assignments of error are made, but it does not appear that, for any reason urged, the court committed such error in any respect as would authorize a reversal of the judgment of the court below. The evidence supported the verdict, and we will not disturb the discretion of the trial judge in refusing to grant a new trial. Judgment affirmed.

All the Justices concur, except