Nix v. State

100 S.E. 197, 149 Ga. 304, 1919 Ga. LEXIS 232

Opinions

Beck, P. J.

Bartow Nix was tried under an indictment charging him with the murder of C. L. Alexander and Jesse Everidge; and the jury trying the case returned a verdict of guilty, there 'being no recommendation made by them. The defendant made a motion for a new trial, which upon the hearing' thereof the court overruled, and the defendant excepted.

1. The original motion contained the general grounds. In the first ground of the amendment to the motion complaint is made of the admission in evidence of a confession made by the defendant. This evidence, which is set forth in the motion in the form of questions and answers, shows that the prisoner was taken from Muscogee county to Macon, Georgia, where he was confined in jail. After he was in jail, according to the testimony of James Palmer, the witness whose testimony was admitted over objection, the accused made a complete confession, sustaining the charge as made in the indictment. In response to questions propounded to him in the course of making the confession the prisoner fully and in detail' stated the circumstances of the killing. This confession was made first in a very short time after the arrival at the Bibb county jail, about 9 o’clock in the evening; and the witness Palmer then testified to a confession substantially the same, made by the accused the next morning. The witness, after having testified to the confession, was interrogated by counsel for the accused as to the circumstances under which it was made; and this questioning of the witness elicited the testimony following: “Q. What did you say to him on your way to Macon? A. We talked all the way along. He never talked. I told him before he ever went to talking, that there was one thing sure: that he never would no more in this world do his wife and children any more good. Q. You told him that, and that very naturally frightened him? A. I don’t know whether it did or not. Q. You don’t suppose that frightened him at all? A. It didn’t seem to. Q. Up to that time he never had made any confession, had he? A. Ho. sir. Q. How come him to open up in the jail and tell you about it? What was said to him there? A. He just opened it himself. Q. Nobody never said anything to him at all ? A. Of course he went to talking. Q. Who brought up the conversation ? Tell exactly just what you said to him. A. I have told you just exactly what I said. Q. No, you haven’t. What caused him to talk over there? A. He just went — we all set down there and he just opened up and went to talking, the same thing over. Q. What same thing over? A. About how he killed him. Q. Thought you said he never had told it before that? A. O, I told you before we went over there, before we got to Buena Vista. Q. I understood you to say when you got to the jail you tried to make him sit down and he stood up and that was when he first told you how it happened. A. That was one time. Q. Where did he first tell you? A. Between here and Buena Vista, when I first went through there, he connected Will Howard; and Culver and Clements wanted me to ’phone back here and get them locked up, and I wouldn’t do it, because I didn’t believe it. Q. He didn’t toll you then he killed them? A. Yes, sir. Q. What caused him to tell it ? A. When I told him about his folks.” Defendant’s counsel moved to exclude this evidence of a confession, on the ground that in view of the testimony of the witness on cross-examination the confession was not freely and voluntarily made, but was induced by fear upon the part of the defendant, generated in his mind by the statement of Palmer to the defendant before the alleged confession was made, “that one thing was certain, he would never in this-world do his wife and children any more good.” The court overruled the motion to exclude the testimony, and admitted it.

We are of the .opinion that the court properly overruled the motion. This confession was made on the next day when the prisoner was safely lodged in the jail of Bibb county and apparently safe from any danger whatever. Whether the confession made immediately after the statement to the prisoner, which we have quoted above, would have been admissible had not substantially the same confession been made the next day in the jail, we do not now rule.

Another witness, Clements, testified to a confession made by the accused on the way from Columbus to Macon, Georgia, and also testified in connection that he made the same confession to himself, to Palmer and Culver after he was in jail at Macon. The statement and confession made by the prisoner was made in response to questions propounded to him. On cross-examination this witness testified as follows: “Q. You say going to Buena Vista in the automobile you commenced talking to him about it? A. Yes, sir. Q. You told him that Albert had told it all, and he had just as well tell it? A. Told him Albert had owned up to it; yes, sir. Q. And he had just as well own up to it? A. Yes, sir.” This testimony of the witness Clements as to the confession made by the prisoner was also objected to, and counsel for the defendant moved to exclude the same on the ground that it appeared that the confession was not freely and voluntarily made, but that the accused was induced to make it by the statement that “Albert had owned np to it and he might ás well own np to it.” The person referred to as Albert was Albert Nix, who was jointly indicted with the accused. The motion to exclude the testimony was overruled. In this the court did not err. In view of all the facts and circumstances we think it was a question for the jury to decide as to whether the confession was freely and voluntarily made. The motion to exclude thé testimony of Clements included the confession made in the jail on the next morning after the arrival, as well as the confession made on the way to Macon the day before, and was not directed solely to the admissibility of the alleged confession immediately following the statement made to the prisoner that Albert had confessed and he might as well “own up.” Nor can we say that the statement made by Clements tended to induce the confession. There was no promise that it would be better for him or that it would inure in any way to his benefit for him to make a confession. The statement that one jointly indicted had confessed might have caused the prisoner to despair of making a successful defense, but we do not see anything in the circumstances to induce him to confess to anything that was not true in order to derive a' benefit from the confession. In the case of Dixon v. State, 116 Ga. 186 (42 S. E. 357), it was said: “Though evidence of an incriminating statement made by a prisoner to another shortly after the latter had offered an inducement extending a hope of benefit is not admissible, another and entirely different incriminating statement, made hours afterwards to the same person under circumstances tending to show that it was purely voluntary and not elicited by such inducement, may be proved, the question whether or not the statement was in fact free and voluntary being one for determination by the jury.” And in the case of Waycaster v. State, 136 Ga. 95 (70 S. E. 883), where the circumstances under which the confession was made tended more strongly than in the present case to show inducement to the confession, the court held that in view of the time that had elapsed between the time of the statement made by an officer, alleged to be an inducement, and the confession offered in evidence, it was a question for the jury to decide whether or not the testimony of the witness offered to prove the confession should be considered by them. See also Wilson v. State, 19 Ga. App. 759 (92 S. E. 309). The evidence of confession was prima facie admissible, and there was no complaint that the jury was not prop erly instructed and cautioned in regard to receiving the confession of guilt and that it was their duty to reject the confession- entirely if it appeared that it was not freely and voluntarily made.

2. During his argument the solicitor-general read in the presence and hearing of the jury the following extract from the opinion in the case of Eberhart v. State, 47 Ga. 598: “It may be a sign of a tender heart, but it is also a sign of one not under proper regulation. Society demands that crime shall be punished and criminals warned, and the false humanity that starts and shudders when the axe of justice is ready' to strike is a dangerous element for the peace of society. We have had too much of this mercy. It is not true mercy. It only looks to the criminal, but we must insist upon mercy to society, upon justice to the poor woman whose blood cries out against her murderers. That criminals go unpunished is a disgrace to our civilization, and we have reaped the fruits of it in the frequency with which bloody deeds occur. A stern, unbending, unflinching administration of the penal laws, without regard to position or sex, as it is the highest mark of civilization, is also the surest mode to prevent the commission of offenses.” He also read the following extract from another decision of the same court, Hawkins v. State, 25 Ga. 207 (71 Am. D. 166): “Human life is sacrificed at this day, throughout the land, with more indifference than the life of a dog, especially if it be a good dog. Scott may not have been a good citizen, still lié was a human creature, under the protection of the laws of the State; and even in his person, the punitory power of the government must be vindicated.” The defendant thereupon'made a motion for a mistrial, on the ground .that the reading of the foregoing extracts in the presence and hearing of the jury was prejudicial to the interests of the defendant and tended to deprive him of a fair and impartial trial. The court overruled this motion, but made the following statement to the jury: “An objection was made to the reading from some volume of the court report by the solicitor-general — some report. The solicitor-general was reading from these volumes to the court. The court instructs you that you take no law from the counsel in this case. The court will charge you fully as to the law of the case; and that you should not take the law either from the solicitor-general or from counsel for the defendant.” The court did not err in. overruling this motion for a mistrial. The reading from a Supreme Court decision of remarks like these may not be helpful to the jury in their effort to arrive at the truth from the evidence in the case, but we do not think that the jury’s hearing' -of these extracts could tend to inflame their minds or arouse in their minds prejudice against the defendant. This differs from cases where it has been held that a mistrial should have been granted where inflammatory remarks were made, and where material facts or circumstances tending to prejudice the cause of the defendant, not contained in the evidence, were stated and brought to the attention of the jury in the argument of counsel for the State. Counsel for plaintiff in error does not undertake to specify the particular passages in the extracts quoted which he criticizes as being inflammatory and, incendiary. Certain sentences in the extract quoted, it seems to us, could have been used with perfect propriety by the solicitor-general in his argument to the jury. He could certainly say with propriety: “A stern, unbending, unflinching administration of tlie penal laws, without regard to position or sex, as it is the highest mark of civilization, is also the surest mode to prevent the commission of offenses.” He could appeal to the jury to show no mercy to crime, but to unflinchingly administer the criminal laws. If the passages were objectionable at all, they were objectionable upon the ground that some of the statements apparently introduced facts; as, for instance, the sentence beginning with the statement that “Human life is sacrificed at this day, throughout the land, with more indifference than the life of a dog,” etc. Or again the statement, “That criminals go unpunished is a disgrace to our civilization, and we have reaped the fruits of it in the frequency with which bloody deeds occur.” But we desire to e'all attention to the fact that these extracts were read from decisions that were delivered something like a half century ago> and referred to the state of society then; and if counsel for defendant had really thought that these remarks were at all inflammatory or incendiary in their character or prejudiced their client, he surely could have called attention to the fact that the judges who rendered these opinions were speaking of a state of society that existed a half century ago, and, in one case, considerably over a half century ago, and the judges who uttered them have long been mouldering in the ground and their bodies have returned to dust. When the later of these two decisions was rendered we had 47 volumes of Georgia Reports; it was the decision in the case of Eberhart v. State. To-day we have 148 volumes. And the older of the two decisions, Hawkins v. State, was rendered before the Civil War. If counsel thought that the reading of these extracts from our decisions tended to incite the jury, he could easily have asked from what decisions they were read (if he did not know at that time), and could have called the attention of the jury to the date at which the judge was speaking; and the jury could very easily have seen that the state of society that the judge was speaking about was the state of society that existed a half century or more ago. Suppose that counsel had read from some decision in a criminal case, reported in one of the English reports, and the judge used similar remarks about the state of society and the frequency of crime, and it appeared that he was speaking of the state of society that existed two centuries or more ago; could it be claimed that the minds of the jury would be inflamed by reading such statements in their presence? Or suppose that counsel for the State, as a part of his address to the jury, had read or recited passages from some chapter in the Book of Isaiah, wherein the prophet had bewailed the prevalence of sin and misery and crime and bloodshed, and had read the scathing denunciations of these offenses against God and against righteousness; surely this could not be ground for granting a mistrial. It would not be said that facts were introduced by the reading of these statements which were calculated to injure the defendant. .Attempts to arouse indignation against crime are permissible. In the case of W. & A. Railroad Co. v. York, 128 Ga. 687 (58 S. E. 183), which was an action for damages, counsel for the plaintiff, in the course of his argument before the jury, used the following language: “Man is the noblest creation of God. God made no greater creation than man. He is the grandest product of divine handicraft; and He hedged about him the law, ‘Thou shalt not kill.’ God told Cain that the blood of his brother Abel cried to him from the ground. The most eloquent sermon I ever heard in my life was from the text, ‘The statutes of the Lord are right.’ ‘Thou shalt not kill’ is the statute of the Lord God Almighty. It was made for the protection of the lord of creation— for man, and it applies to a railroad corporation just as much as it does to an individual. If a man is dead by the reckless negligence of the servants and agents of the railroad corporation, the full consequences to him are the same; he is just as dead as if he had died by the uplifted and directed and murderous hand of his brother man. The shedding of innocent blood is just the same —just the same. Our land is defiled when innocent blood is shed therein, whether it be by the hand of a railroad corporation or whether it be by the murderer’s hand or some one contending in a death grapple with his brother man; and the curse of God, which is charged against that, is upon it just the same. Gentlemen of the jury, when George W. York died on that public crossing in the City of Acworth, last October was a year ago, his innocent blood stained the right of way of this defendant.” Whereupon counsel for the defendant moved the court to declare a mistrial upon the ground that the remarks by counsel for the plaintiff were improper. He refused to declare a mistrial, and exception was taken to this ruling. In discussing the exception this court said: “We do not think the remarks of counsel were of such character as to require the court to declare a mistrial. A mere flight of oratory of counsel when addressing the jury is not ground for mistrial. Counsel may bring to his use in the discussion of the case well-established historical facts and may allude to such principles of divine law relating to transactions of men as may be appropriate to the case. It is not impassioned oratory which the law condemns and discredits in the advocate, but it is the introduction of facts not disclosed by the evidence, which requires the judge to use his power of declaring a mistrial. In this connection, see W. & A. R. Co. v. Cox, 115 Ga. 719 [42 S. E. 74]; Patterson v. State, 124 Ga. 409; Taylor v. State, 121 Ga. 354 (7) [52 S. E. 534]; McNabb v. Lockhart, 18 Ga. 507, and cit. An examination of the remarks of counsel which are complained of will show that there was no effort to introduce any fact not disclosed by the evidence.” Here, as will be observed, the court states the rule to be that “it is the introduction of facts not disclosed by the evidence, which requires the judge to use his power of declaring a mistrial.” And the facts not in the record which the court is ruling that it is improper for counsel to introduce in his argument are material facts which might be considered by the jury as entering into a determination of the main question of fact before them; that is, whether in a criminal case the defend ant on trial is guilty or not guilty. Now, who will suppose for a moment that what a judge said about the frequency of crime in the state of society which existed here before and immediately after the Civil War will be considered by the jury in making up their minds upon the evidence in the case before them. And counsel for the defendant could, in a word or two, have called attention to the date of these utterances; it cannot.be imagined that the court would have refused him permission to do this, if he had asked it. At any rate, the statements in the opinions referred' to were not of any facts which could have been connected with the facts of the case on trial, so as to influence the jury in their deliberations; and the denunciation of crime and the appeal for a righteous verdict and an unflinching administration of the law was not improper from any standpoint.

3. Complaint is made, in another ground of the motion for a new trial, that during the course of his argument to the jury the solicitor-general turned to the defendant and in the presence and hearing of the jury said: “Are you defending this case out of the money you got from the pockets of your victim?” Coimsel for the defendant immediately objected to this conduct upon the part of the State’s counsel, and the court thereupon said: “I don’t think, Mr. Solicitor, it is a good idea to address your remarks to the man on trial. I think that is improper. Address your remarks to the jury. I think when counsel asks defendant a question, that defendant’s counsel has a right to reply to it.” While the remark of counsel for the State to the defendant in the presence of the jury was improper, we think that the court’s saying to him that it was improper was of the character of a rebuke. To say to counsel in the presence of the jury, “Tour conduct is improper,” can not be regarded otherwise than as a rebuke to counsel. And in view of this rebuke administered by the 'court, thereby showing to the jury that the remark of counsel was improper and that the court disapproved of it, we do not think that the improper remark of counsel requires the grant of a new trial. Whether it would have been error to refuse the grant of a mistrial on motion by counsel is a different question not made in this record, as there was no motion made for a mistrial upon this ground.

The evidence authorized the verdict, and the court did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur except