Fair v. State

148 S.E. 144, 168 Ga. 409, 1929 Ga. LEXIS 153

Opinions

Russell, C. J.

The plaintiff in error was convicted of' the offense of murder, and sentenced to die by electrocution. He made a motion for a new trial, which was refused, and the. exception is to that judgment. As presented by the evidence, it is the contention of the State that the plaintiff in error unlawfully shot a man named Griffin and was endeavoring to escape, and that he shot and killed J. E. McDaniel, a police officer of the City of Atlanta, who was trying to arrest him, and that' he shot the officer for the purpose of evading an arrest and to effect his escape. As appears from the record, it is the contention of the plaintiff in error that he was fleeing from the scene of the shooting of Griffin, not for the purpose of escaping, but in order to reach the officer and get in the store behind the officer for protection from Griffin and his companions, and for protection from the crowd who were crying out against-him; that he knew that Griffin and two other men had been looking for him to shoot him down on sight, and that they had shot down and dangerously wounded a man named Zink under the impression that he was the plaintiff in error; that as he was approaching the door of a store on Decatur street, where officer McDaniel was standing, the officer stepped forward and the two collided, and the pistol which plaintiff in error was holding in his hand was caught between him and the officer and accidentally discharged in the scuffle which followed; and that he at no time had any intention to shoot the officer, but that the shooting was accidental. There was evidence in behalf of the State, indicating that the shooting was not accidental; and there was also testimony that there was a scuffle between the officer and the accused as they came into the store from the street.

The amendment to the motion for a new trial contains eight grounds. These will be considered in reverse order. .In ground eight complaint is made that the court permitted the solicitor-general, over the objection of the defendant, to argue to the jury that “statistics'compiled by reliable authorities, published in a book which he (the solicitor-general) had and could produce, showed that Georgia had 561 murders in 1922,” it being assigned as error that “the court permitted the solicitor-general in his argument to get before the jury for their consideration alleged facts which were irrelevant, immaterial, inadmissible, and highly prejudicial to the defendant, and that the argument based on said alleged facts (the claim that there were 561 murders in Georgia in 1922) was highly prejudicial to the defendant in that both the assistant solicitor-general and the solicitor-general in their argument commented on the large number of murders in Georgia, and that “lax law enforcement was largely responsible for crime conditions in Georgia.” It appears from this ground of the motion, as approved by the court, that both the assistant solicitor-general and the solicitor-general argued to the jury that the defendant was guilty of murder, and insisted and urged the jury to bring in a verdict finding the defendant guilty of murder, without recommendation. In the course of the argument of the solicitor, after he had been allowed to state and argue to the jury that statistics showed 561 murders in Georgia in 1922, he urged that the only proper verdict in this case would be a verdict finding the defendant guilty of murder, without recommendation, which meant the death penalty; and further stated that a life sentence would be almost a farce, that in and after three years the defendant would be eligible for parole and would make application for parole; that he (the solicitor-general) would be having to go to the capítol to oppose defendant’s application for parole. “Movant says, in view of the argument-by the solicitor-general and his assistant as above set out, that the ruling of the court allowing the solicitor-general to state that statistics showed 561 murders in Georgia in 1922, and allowing the solicitor-general to comment on these alleged statistics, was very harmful and prejudicial to the defendant; and movant contends that a new trial should be granted him because the court permitted such statement and argument to the jury, and because the court thereafter erred in overruling defendant’s motion for a mistrial, as hereinbefore, set out in this ground of this amendment.”

Section 4957 of the Civil Code of Georgia provides:' “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same; and, on objection made, he shall also rebuke the same, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the plaintiff’s attorney is the offender.” Even before the adoption of the Code of 1863, Judge Nisbet, in Mitchum v. State, 11 Ga. 615, and Berry v. State, 10 Ga. 511, 522, announced in language of unanswerable logic and judicial inspiration the proper rule applicable to and governing the argument of counsel, and stressed the point that matters not in evidence were not proper subject for argument and could not afford the basis for a jury’s verdict. In Washington v. State, 87 Ga. 12 (3) (13 S. E. 131), this court held that “On the trial of an indictment for arson, it was error to allow the solicitor-general, over objection of defendant’s counsel, to state, in his concluding argument, that frequent burnings had occurred throughout the country, and to xxrge the jury, in consequence thereof, to strictly enforce the law iix the case then on trial.” Upon this error the judgment refusing a new trial was reversed. Mr. Justice Lumpkin, delivering the unanimous opinion of this court, said: “It is the well-settled policy of this court that counsel in the argument of cases should confine their remarks to the law and the evidence, and that in no instance should they be permitted to comment upon extraneous facts prejudicial to the interests or rights of a party, over his objection, unless such facts, be of a kind of which judicial cognizance may be taken without proof.” In support of the “wisdom of this rule” the learned Justice cited Weeks on Attorneys, § 112, and Ferguson v. State, 4-9 Ind. 33, among other authorities. In the latter case the same point was before the Supreme Court of Indiana as is here now before us, and the court held: “On the trial of an indictment for murder, it is error for counsel for the State, in argument to the jury, to comment on the frequent occurrence of murders in the community and the formation of vigilance committees and mobs, and to state that the same are caused by laxity in the administration of the law, and that they should make an example of the defendant, and for the court, upon objection by the defendant to such language, to remark to the jury that such matters are proper to be commented upon.” Judge Lumpkin also cited, in the Washington ease, the rulings in Bennett v. State, 86 Ga. 401 (12 S. E. 806, 12 L. R. A. 449, 22 Am. St. R. 465), Tucker v. Henniker, 41 N. H. 317 and Towner v. Thompson, 82 Ga. 740 (9 S. E. 672), in which Chief Justice Bleckley said: “No court, however, should tolerate counsel in stating any. fact in argument as to which there is no evidence, unless it be some fact which can be noticed judicially without proof; certainly that Mr! Towner was born in Illinois is not one of this class of facts. There should have been no allusion made to it in argument.” 'Mr. Justice Lumpkin, completing his review, said as to Washington’s case, as I think should be said here, “In the case now under consideration, the fact that frequent arsons had occurred in the community, if such was the fact, could have no possible bearing upon the question whether or not the defendant maliciously set fire to the guardhouse in Albany.”

The court in this case also ruled as to whether the fact, if true, that there were 561 murders in Georgia in 1922 was not one of which the court or jury could take judicial cognizance. It can not be said that all people, unlettered- as well as educated, and non-readers as well as close readers, know such facts' as how many murders or other crimes are committed in a certain State in a certain year, and the court could not correctly hold that the statistics to which the solicitor-general referred were matters of such common knowledge that the court would take judicial cognizance of their existence without proof. As to this, in Washington’s case it was held: “Certainly the fact he undertook to state was not one of such public notoriety or matter of history as that the court or jury could take judicial cognizance thereof. It was the duty of the court, when the objection was made by the defendant’s counsel, to promptly and unequivocally declare that such an argument was improper, and require the solicitor-general to desist therefrom.” Whatever may be the rule observed in our present practice of this era, it is at least memorable as an instance in which Georgians can feel a conscious pride that in the case of Tucker v. Henniker, supra, cited by Justice Simmons in the Bennett case, supra, the Supreme Court of New Hampshire adopted almost bodily Judge Nisbet’s opinion in the Mitchum, case.

'In the opinion of the majority of the court, none of the remaining assignments of error require a reversal of the lower court..

In view of the error set forth in the first headnote, the court erred in overruling the motion for a new trial. .

Judgment reversed.

AM the Justices concur.